Marcelino Hanríquez et al v. Argentina, Case 11.784, Report No. 73/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 603 (2000).
MARCELINO HANRÍQUEZ ET AL.
3 October 2000
On January 4, 1996, attorneys Octavio Carsen and Myriam Carsen,
members of the Social Research and Peoples Legal Advisory Services
Center [Centro de Investigaciones Sociales y Asesorías Legales
Populares] (CISALP), and Abdón Zenón Hanríquez, represented by attorney
Rafael Amadeo Gentilli, also a member of CISALP (hereinafter the
petitioners), filed a petition with the Inter-American Commission
on Human Rights (hereinafter the Commission or the IACHR)
against the Argentine Republic (hereinafter the State or Argentina)
wherein they basically assert violation of the right to equal protection
of the law (Article 24) protected under the American Convention on Human
Rights (hereinafter the Convention) and the right to equality
before the law (Article II) under the American Declaration of the Rights
and Duties of Man (hereinafter the Declaration).
The alleged victims are Sofía Ester, Abdón Zenón, Ramón Arcángel
and Marcelino Hanríquez (hereinafter the Hanríquez or the
The petitioners allege that during the last de
facto government in Argentina, the Hanríquez were incarcerated by
order of a federal judge who was neither independent nor impartial and
who charged them with an offense criminalized in a law whose legal qualification
made the law itself a violation of the right to freedom of expression.
With restoration of democratic government, law 24.043, enacted
on December 23, 1991, provided for reparations for persons detained on
orders of the executive branch of government during the de facto government. The
petitioners exercised the remedy provided for in that law, seeking compensation
for the days they were held in custody on orders from the aforementioned
federal judge. Government
authorities denied them any compensation for the court-ordered incarceration.
However, their right to compensation for an eight-day period during
which they were in executive custody was recognized.
They went to court to appeal the governments decision and
to have Law 24.043 declared unconstitutional on the grounds that it discriminated
against them by making no provision for their predicament.
The courts that heard the appeal upheld the government authorities
When it examined the admissibility of the present case, the Commission
concluded that it met the requirements stipulated in Articles 46 and 47
of the American Convention. After
examining the merits of the case, however, the Commission concluded that
the facts alleged by the petitioners did not constitute violations of
Article 24 of the Convention.
PROCEEDINGS WITH THE COMMISSION
The IACHR received the petition on January 4, 1996.
The Commission requested additional information from the petitioners
on February 9 of that year and received a note from them on April 7, 1997.
The case was opened on August 1, 1997.
On November 3 and December 8, 1997, the State requested successive
30-day extensions, granted on November 7 and December 16, respectively.
On January 13, 1998, the State presented its reply.
The Commission received a note from the petitioners on January
14, 1998, and sent them the States reply on February 9, 1998. On March 23, the petitioners requested a 30-day extension,
which they were granted on March 30.
The petitioners presented their response to the States reply
on June 5, 1998.
In the meantime, on April 3, 1998, the IACHR sent the petitioners
and the State a note placing itself at their disposal for purposes of
arriving at a friendly settlement and requesting their opinion on the
matter. On May 20, the State
reiterated that in its judgment the case was inadmissible and asked the
Commission to so find. It
also indicated that it was not in a position to accept the offer to arrange
a friendly settlement. The
petitioners were advised of the States response on April 22.
Then, on July 6, 1998, the petitioners observations were
sent to the State. The States
observations, in turn, were received on August 20 and forwarded to the
petitioners on August 25. At
the petitioners request, the States observations were sent
to them a second time on October 23.
A note was received from the petitioners on November 16 and forwarded
to the State. The States
reply to the petitioners most recent observations was received on
March 1, 1999, and forwarded to the petitioners.
The petitioners observations on the States third brief
were received on July 13, 1999 and forwarded to the State.
The latter made its observations in a note received on August 18,
1999. On October 23, additional observations were received from the petitioners
and forwarded to the State on November 8, 1999.
The State was given 60 days in which to reply.
On January 4, 2000, the State requested an extension, which was
granted on February 1, 2000. The
extension was for 45 days. The
State requested another extension on April 11, 2000.
On April 24, that second extension was granted, and was to expire
on May 15, 2000.
THE PARTIES POSITION
On October 17, 1974, the Hanríquez siblings were arrested at home,
in the city of Resistencia in northeastern Argentina, for violation of
law 20.840. Their provisional
acquittal and release was ordered on December 31, 1974.
After the 1976 military coup, the new federal judge in charge of
Resistencias Federal Court of First Instance (hereinafter the
federal court), appointed to the bench by the military dictatorship,
ordered that the Hanríquez siblings be detained again on July 29, 1976.
They remained in custody until December 4, 1979, when a ruling
was handed down in the case of Franco Jorge Ramón, Rípodas Crisanto,
Cordisco Juan Carlos et al on/ Lawful association and violation of law
20840. That ruling acquitted the Hanríquez siblings of the crime with
which they had been charged, which was possession of subversive printed
material, criminalized under Article 2.c of law 20.840. On December 6,
1979, the federal court ordered the release of the Hanríquez siblings.
However, on orders of the Military Chief for Area 233, they remained in
custody until December 13, 1979, the date on which that Military Chief
ordered their release. The
Resistencia Federal Court made their acquittal final on October 7, 1980.
The Hanríquez siblings instituted steps to claim the compensation
provided for under law 24.043 on State Reparation.
However, for purposes of reparations, the Office of the Under Secretary
for Human Rights of the Ministry of the Interior recognized only the eight
days that the Hanríquez siblings were held at the exclusive disposition
of the military authority; it refused to recognize the period they were
held by court order. Under Article 3 of Law 24.043, the petitioners went to the
Administrative Law Appellate Court to appeal the decision.
They petitioned to have the law declared unconstitutional, arguing,
inter alia, that the law violated
the constitutional principle of equal protection of the law inasmuch as
it did not make allowance for redressing situations such as the one they
had endured. The Administrative
Law Appellate Court upheld the Ministrys decision.
The petitioners then filed an extraordinary appeal with the Supreme
Court of Justice of the Nation to challenge this decision.
The high court, however, upheld the appellate courts decision.
The Hanríquez siblings have obtained a ruling from the highest
court in the land, which ruled that their case was groundless.
On April 7, 1997, they presented a note to the Commission, attached
to which were the Supreme Court rulings on the claims filed by Abdón Zenón,
Marcelino and Ramón Arcángel Hanríquez. By a note received on January
14, 1998, the petitioners also sent a copy of the one remaining ruling,
rendered on October 14, 1997, in the case of Sofía Ester Hanríquez.
The Hanríquez siblings contend that they have exhausted domestic
remedies, since the administrative-law action and the appeal provided
for in law 24.043 are the proper remedies in their case.
They argue that they filed the claim under law 24.043 because they
firmly believed that the de facto
circumstances of their case merited the same treatment allowed under that
law. To substantiate the
claim they filed with domestic authorities, they presented all the de facto and de jure circumstances
related to application of law 20.840 and the failure of the courts to
provide guarantees during that period. The petitioners claimed compensation for the suffering
endured during the period of incarceration.
This claim invokes law 24.043 on the understanding that the law
in question should cover the situation described in the case brief (
The assertion of the right to redress cannot be separated from the other
issues at stake since the former is predicated upon the latter.
The petitioners allege that the violated right they were asserting
in the actions they brought was equal protection of the law.
The court settlement they were seeking was not about the reasons
for the arrest, the judiciarys lack of independence, the legal description
of the law, the law in effect at the time, or the legality of the proceeding
ordering temporary detention pending trial.
The petitioners introduced these as collateral issues intended
solely to shed light on the attendant de
facto and de jure circumstances,
when they presented their case before the various government and judicial
authorities at the time the compensation claim was initiated
On the merits
First, the petitioners allege that the State did not give the same
treatment to persons covered under the same case and in the same ruling:
the Hanríquez siblings were acquitted, whereas Armando Atilio Benítez,
Jorge Rearte and Escolástica Esperanza Riveros de Ferreira were convicted.
In the case of the last three, the Office of the Assistant Secretary
for Human Rights accepted their claim to compensation for the full period
of their detention, including the time ordered by the court authorities.
On an appeal filed with the Administrative Law Appellate Court
under Article 3 of law 24.043, the Hanríquez siblings argued the case
for the discriminatory treatment they received by comparison to the other
three persons. The court rejected the argument on the grounds that law 24.043
was very clear as to the situations it contemplated. Because the situation of the Hanríquez siblings was not among
the hypotheticals that the law posited, the Administrative Law Appellate
Court could not include them without interfering in matters of State that
were not within its competence.
The petitioners also challenge law 24.043.
They argue that under the principles of the draft law, when
compensation is merited in a given case, the law must not make distinctions
or benefit one sector of aggrieved parties over another; instead, the
principle of equity demands that the law benefit all those who suffered
the same injury. Nevertheless,
arbitrary detentions did occur that would not qualify for reparations
under that law; one such case was the Hanríquez situation.
The law made no provision for the victims of forced disappearance;
an oversight recently corrected in another law.
It made no provision for prisoners held by the armed forces, who
were never in executive custody and never tried by military tribunals.
The law did not provide for those forced to flee the country because
of political persecution; it made no provision for the disappeared children
recovered by their families. Nor did it cover persons tried by federal courts, by judges
appointed by the dictatorship, who were required to take an oath of allegiance
to the so-called National Reorganization Process. The petitioners contend that the Hanríquez siblings fall into
the last of these categories. The
only difference between the situation of those who received the compensation
and those who, like the Hanríquez, were precluded, is that the former
satisfied some purely formal requirement, which is that they were, at
some point in time, under the control of the national executive power.
In detailing the factual and legal circumstances of the case, the
petitioners state that the Hanríquez were arrested and tried by the judiciary
under the dictatorship, which was not an independent judiciary. This was all in violation of Articles XVIII, XXV and XXVI of
the Declaration and Articles 7(1), (2), (3), and (6) and 8(2) of the Convention.
The federal judges, like the rest of the judiciary during that
period, were not independent and the courts could offer no judicial guarantees.
To back up their assertions, the petitioners cite what the Commission
found in its 1980 Report
on the situation of human rights in Argentina.
As that report stated, competent judges were removed from the bench
and the new judges that the military government appointed to replace them
were forced to swear to uphold the Charter of the National Reorganization
Process rather than the Constitution.
Among the principles not respected were the following: nullum crimen sine lege; the presumption of innocence, and the right
to be brought before a judge within a reasonable period.
Furthermore, the crime for which they were prosecuted was that
of possession of subversive material, stipulated in Article
2.c of law 20.840.
The Defense of Democracy Act struck down Law 20.840 in 1985.
When he proposed the new act in his inaugural address, the President
said the following: The laws that need to be struck down are those
that are the unmistakable brainchild of a totalitarian mentality.
These are laws so sweeping and elastic that they can be used for
ideological persecution of dissidents.
Their penalties are so draconian death above all-that they
become weapons for annihilating an enemy rather than tools for preventing
the kinds of events that are so inimical to comity in a free society.
Law 20.840, therefore, was a violation of freedom of thought and
expression, upheld in Articles IV of the Declaration and 13(1) of the
The petitioners argue that the anomalous situation of the Judiciary
at the time was compounded by the inquisition-like quality of the law
under which the petitioners were prosecuted.
As a result, their detention was just as wrongful as the detentions
effected by executive order. However,
Law 24.043, to compensate victims, made allowance for the latter, but
not for people like the Hanríquez.
The distinction that the law made was based on a mere formality:
whether there was an executive order of detention.
Hence, Law 24.043 violated the right to equal protection of the
law established in Articles II of the Declaration and 24 of the Convention.
The petitioners cite the ruling in the Bufano
Alfredo v. Ministry of the Interior case,
which recognized the petitioners right to claim compensation for
the full time he was in exile, even though Law 24.043 made no express
provision for his situation. The
ruling rejected a literal interpretation of the law and opted instead
for an interpretation of the laws object and purpose.
The Bufano Alfredo ruling
held that what matters is not how the act of authority was exercised
) but rather the proof that freedom was effectively curtailed.
The petitioners allege that the State was unable to show that the
distinction created with the reparations system established under Law
24.043 is a function of different situations. The
law in question covers only those persons who were held by executive order
or civilians tried by military tribunals.
It uses formal or procedural requirements to exclude persons thrust
into precisely the same predicament.
The petitioners also allege that although it is obvious that
any law that would disregard everything done by judges during the prolonged
state of siege that Argentina endured would create an enormous vacuum
in the administration of justice, this does not mean that the judges did
not themselves commit violations of civil and political rights, as in
this case. They also
assert that in these cases, where the detentions were driven by
ideologies that persecuted freedom of opinion, judges had fewer chances
of administering justice impartially.
All their decisions were subject to review by the executive branch.
This meant that the same case, tried by a military tribunal, the
executive branch, and the judiciary, while implicitly different, was essentially
the same in the means used and ends sought.
The petitioners state that their intention is not to dwell upon
the issue of whether all acts performed by de
facto government authorities should be considered illegal. Instead, their intention is to bring to light a specific miscarriage
of justice detrimental to the Hanríquez, not to cause the collapse of
the entire judicial system. This
particular case is one of ideological persecution by a judge lacking independence,
invoking a law so broad and elastic that it could be used to persecute
political dissidents. It
is not a question, the petitioners contend, of reversing all civil, labor,
and other rulings. Instead,
what they seek is acknowledgement of the fact that the Hanríquez were
the victims of political persecution and that the circumstances surrounding
their criminal prosecution were a patent violation of their human rights.
Hence, their situation is no different from that of those persons
detained and held in custody by executive order.
The State acknowledges that domestic remedies have been exhausted.
It asserts, however, that the petitioners claim concerns
the administrative and judicial acts that were the reason for the remedy
filed under law 24.043, which provides for reparations for persons deprived
of their freedom without a court order, under the conditions and at the
times stipulated therein. Therefore,
the States acknowledgment that remedies have been exhausted is only
with respect to the assumptions upon which law 24.043 is premised, and
does not extend to situations not contemplated in the law, such as arrest
by order of a federal judge, as the petitioners contend.
On the merits
The State notes that law 24.043 in principle redresses two types
of arbitrary detention experienced by persons between November 6, 1974
and December 10, 1983: detention by executive order and civilians prosecuted
by military tribunals. It further notes that the proper authority interpreted
the spirit of the law and expanded the range of specific situations that
the State should interpret the law as encompassing: persons deprived of
their freedom by order of the military districts;
persons deprived of their freedom and held in clandestine detention centers,
and persons brought before military tribunals while performing their mandatory
military service. Some 1300
of the cases presented were of persons whose freedom was restricted by
simultaneous order of both the executive branch and the judiciary. In all these cases, it was determined that the reparation was
for the period during which the person in question was held by executive
order; the period during which the person in question was being held exclusively
by court order was not counted.
This criterion was arrived at following a debate in which other
agencies made the point that no compensation was owed for the period during
which the two types of detention overlapped.
Based on these criteria, the benefit was denied in some 600 cases
filed by persons who had been detained exclusively by order of a court;
reparation was partially denied in the remaining 50% of the cases.
Concerning the allegation of discrimination in the laws application,
the State notes that the situation of Florencio Pacífico Herrera, Armando
Atilio Benítez and Jorge Rearte, named by the petitioners, was in fact
not the same as that of the Hanríquez.
In the case of the first three, an executive decree ordered their
arrest and a second ordered an end to their arrest.
For purposes of compensation the number of days between the two
decrees was counted. Their
situations, therefore, are not the same as that of the Hanríquez, since
no executive decree was ever issued ordering their arrest.
The Hanríquez were held exclusively by order of the court.
Concerning the allegation that Law 24.043 is discriminatory, the
State argues that the guarantee recognized in Article 24 of the Convention
implies an obligation to ensure that persons in equal circumstances are
treated equally. However,
this does not prevent the lawmaker from making provision for differing
consequences to situations that the lawmaker deems to be different, provided
the law is not unfair, is not unduly slanted in favor of one group or
against another, does not afford some personal or class privilege or disadvantage,
or even unlawful persecution. The
Hanríquez situation is not the one covered under the law, which
justifies differing treatment. In
the extensive interpretations that the courts have given of the situations
covered under the law (see ut supra
para. 21), the criterion factored in has been the arbitrary nature
of the arrest by virtue of the illegitimacy of the authority ordering
the arrest. By contrast, detentions ordered by competent judges are not
prima facie vitiated, particularly
when the case was later reviewed to determine whether the arrest was done
As for the independence and impartiality of judges under the dictatorship,
the State recognizes the environment in which the judges who ordered the
Hanríquez arrest were functioning.
However, elementary reasons of juridical security and continuity
and the validity of the rulings handed down by the judges on the bench
between 1976 and 1983with the same authority and legitimacy as those
of the magistrates on the bench under the de
jure governmentscounter the arguments to the effect that there
was not administration of justice during that period.
The State agrees with the Commissions statement that the
legality of the system decreed by the de
facto government is a question that has profound and serious political
and juridical implications, which the authorities of the democratic government
The State notes that the petitioners generalized allegation
that law 20.840 under which the Hanríquez siblings were prosecuted was
unconstitutional and subsequently struck down and that the Judiciary under
the de facto government was not independent, is not sufficient to show
that a temporary detention pending trial, ordered by a judge with competence
over the case, based on a law that predated the facts in the case, is
unlawful. The State does
not deny that under the de facto
government, human rights violations may have occurred as a consequence
of detention ordered by a court on the basis of a law that predated the
facts in the case. What
it cannot accept is the reparations claim, unless local remedies are exhausted
in an attempt to prove that the violation occurred.
The petitioners, however, do not show that they attempted to prove
the human rights violation at the domestic level.
ANALYSIS ON ADMISSIBILITY
Competence ratione personae, ratione temporis, ratione loci and ratione
materiae of the Commission
The Commission is competent to examine the present case. Concerning its competence ratione
personae, ratione temporis and
ratione loci, the petition alleges acts attributable to the State
and committed within its territory.
The acts purportedly occurred subsequent to Argentinas ratification
of the Convention.
The Hanríquez siblings are natural persons and the acts were alleged
to be directly detrimental to them, as Article 44 requires, in keeping
with Article 1(2) of the Convention.
As for the Commissions competence ratione
materiae, the petitioners are alleging a violation of the right to
equal protection of the law, upheld in Article 24 of the Convention and
Article II of the Declaration. The
Commission considers that once the Convention entered into force for Argentina,
the Conventionand not the Declaration-became the primary controlling
law for the Commission insofar as the petition alleges violations of substantially
identical rights set forth in both instruments and the claimed violations
do not involve a continuing situation.
In the instant case, the provisions upholding the right to equal
protection of the law are essentially the same in the Declaration and
the Convention. The Commission
will, therefore, base its finding on the Convention rather than the Declaration.
The Commission further notes that the parties in the instant case
concur that the petition does not concern the facts that led to the arrest,
the judiciarys lack of independence, arguments concerning the legal
classification of the law in effect at the time, or the legality of the
proceeding whereby temporary detention pending trial was ordered.
Exhaustion of domestic remedies
In order for the Commission to admit a petition, Article 46(1)(a)
of the Convention stipulates that the remedies under domestic law are
to have been pursued and exhausted in accordance with generally recognized
principles of international law.
The Commission considers that Article
46(1)(a) of the Convention only requires exhaustion of those domestic
remedies that are the appropriate ones for the alleged infringements of
Convention-protected rights; these remedies must also be adequate, in
other words, they must be capable of providing an effective and sufficient
remedy to those violations.
The petitioners allege that the suitable remedy in their casethe
remedy of appeal provided for in law 24.043-was exhausted.
Arguing that law 24.043 should have made allowance for their situation,
the petitioners made their case before the administrative and judicial
authorities, describing all the factual and legal circumstances that made
their case similar to the situations that the law contemplates.
Even so, they were denied the reparation provided for in that law.
The State contends that the petitioners turned to the courts to
appeal an administrative decision, invoking law 24.043, which made provision
for reparations for those persons who were denied their freedom, without
a court order, under the conditions and at the times stipulated therein. The State therefore maintains that domestic remedies were not
exhausted in respect of the issues not contemplated in law 24.043, such
as the type of detention to which the petitioners were subjected, on orders
from a federal court, with no executive order involved. This situation and the violations it implies should have been
proven in the domestic courts through the suitable remedies.
The remedy that law 24.043 provides is not the suitable remedy
in their case.
The Commission considers that the parties are in agreement on the
fact that the core issue being settled in this case is the fact that the
remedies that the petitioners filed under law 24.043, to obtain reparation
for the violation of their human rights during the dictatorship, were
Specifically, the petitioners went to court alleging a violation
of their right to equal protection of the law on the grounds that their
situation was not contemplated in the law in question and that in applying
the law, the treatment they had received had been different from the treatment
accorded to Florencio Pacífico Herrera, Armando Atilio Benítez and Jorge
Rearte, who were tried by the same court.
The State has not alleged failure to exhaust internal remedies
in relation to the alleged violations of Article 24 of the Convention.
The Commission therefore finds that on this point, internal remedies
have been exhausted in accordance with Article 46(1)(a) of the Convention.
The States allegation of a failure to exhaust the suitable
remedy to obtain reparation for the alleged violations committed against
the Hanríquez siblings during the dictatorship, is closely intertwined
with the question of whether the right to equal protection of the law
that the petitioners allege was violated.
If it is found that the right to equal protection of the law was
violated, this would mean that the petitioners are entitled to have their
case treated in accordance with the procedure established in law 24.043.
If that is the case, then the avenue the petitioners chose to pursue,
which is the one established in that law, will have been the suitable
remedy; by extension, then, the suitable remedies will have been exhausted.
If, on the other hand, it is found that law 24.043 is not discriminatory,
this would mean that the petitioners have attempted to use the special
procedure established in law 24.043 to claim a compensation based on circumstances
different from those that would qualify them to avail themselves of that
procedure. They would not,
therefore, have used the suitable remedy, which would have been a civil
suit for damages filed against the State in court.
Deadline for presentation
Under Article 46(1)(b) of the Convention, the petition 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.
In the instant case, the State has not alleged noncompliance with
this requirement. It can,
then, be assumed that the State has tacitly waived its right to challenge
the petition on the grounds of a failure to comply with this requirement.
For the record, however, the Supreme Court decisions in the cases
of Abdón Zenón Hanríquez, Marcelino Hanríquez and Ramón Arcángel Hanríquez
are dated February 11, 1997. Its ruling in the case of Sofía Ester Hanríquez
is dated October 14, 1997 and was notified on November 7 of that year.
The petition was filed with the Commission on January 4, 1996,
in other words, before the Supreme Court handed down its rulings on the
Hanríquez cases. The Commission therefore considers that the requirement stipulated
in Article 46(1)(b) concerning the deadline for filing has been met.
Duplication of proceedings and res
The Commission has received no information to indicate that the
subject of the petition is pending with any other international proceeding
for settlement, as stipulated in Article 46(1)(c) of the Convention.
The Commission therefore considers that the requirement in question
has been met. The Commission
also concluded that the requirement established in Article 47(d) has also
been fulfilled, inasmuch as this petition is not substantially the same
as another already examined by the Commission, and no information has
been received to indicate that the case has been decided by another international
Characterization of the facts
Article 47(b) of the Convention provides that the Commission shall
declare inadmissible any petition or communication presented when it does
not state facts that tend to establish a violation of the rights guaranteed
by this Convention. In the instant case, the Commission considers
that the facts narrated by the petitioners relative to the right to equal
protection of the law could tend to establish a violation of Article 24
of the Convention. The Commission,
therefore, concludes that the case is admissible on this ground as well.
ANALYSIS ON THE MERITS
36. Article 24 of
the Convention stipulates that All persons are equal before the
law. Consequently, they are
entitled, without discrimination, to equal protection of the law.
In interpreting Article 24 of the Convention, the Inter-American
Court of Human Rights has held the following:
there would be no discrimination in differences in treatment of individuals
by a state when the classifications selected are based on substantial
factual differences and there exists a reasonable relationship of proportionality
between these differences and the aims of the legal rule under review.
These aims may not be unjust or unreasonable, that is, they may
not be arbitrary, capricious, despotic or in conflict with the essential
oneness and dignity of humankind.
37. Based on the
foregoing, a distinction involves discrimination when:
the treatment in analogous or similar situations is different;
the difference has no objective and reasonable justification;
the means employed are not reasonably proportional to the aim being
The Commission will now examine: first, whether law 24.043 violates
the right to equal protection of the law by not including the Hanríquez
situation among the hypothetical situations wherein it becomes applicable;
and second, whether its application to the case is discriminatory vis-à-vis
other cases named by the petitioners.
In the instant case, the petitioners allege that law 24.043 is
a violation of Article 24 of the Convention.
They maintain that wrongful detentions occurred that were not covered
by the reparations allowed under the law, as in the Hanríquez case. They were prosecuted by federal courts composed of judges appointed
by the dictatorship, who had to swear an oath of allegiance to the so-called
National Reorganization Process.
However, whereas the situation of persons detained by executive
order is covered under law 24.043, the Hanríquez situation is not.
The distinction that the law establishes is based on a formal requirement:
the existence or nonexistence, as the case may be, of an executive decree
ordering the detention.
The petitioners contend that the Hanríquez situation is similar
to the situation covered under law 24.043, because their detention was
as arbitrary as the detentions done by executive order.
They argue that under the de
facto government, the natural judges had been removed from the bench
and the new judges that the military government appointed to replace them
had taken oaths of allegiance to the Charter of the National Reorganization
Process rather than the Constitution.
Among the principles not respected were the following: nullum
crimen sine lege, presumption of innocence, and the right to be brought before
a judge within a reasonable period.
The law under which they were prosecuted, law 20.840, was the brainchild
of a totalitarian mentality. It
was so broad and elastic that it could be used for ideological persecution
of dissidents, which was one of the reasons the law was struck down in
The State argues that Article 24 of the Convention establishes
the obligation to guarantee equal treatment to persons whose circumstances
are the same, but does not prevent the lawmaker from establishing different
rules for what he/she considers to be different situations, provided the
law is not arbitrary, is not unduly slanted in favor of one group or against
another, does not afford some personal or class privilege or disadvantage,
or allow for unlawful persecution.
Because the Hanríquez situation is not among those that the
law covers, differing treatment is permissible. The State cites examples
of the expansive interpretations that the courts have given of the situations
provided for in the law, in cases of persons deprived of their freedom
by order of military authorities or confined to secret detention centers,
or conscripts tried by military tribunals. It points out that in all these cases, the criterion has been
the arbitrary nature of the detention by virtue of the illegitimacy of
the authority ordering it. The
State alleges that in cases of persons deprived of their freedom by order
of a competent judge, on the other hand, the detention is not vitiated
prima facie and a review of the proceeding to ascertain whether or
not it was lawful could have been requested.
As to the independence and impartiality of the judges during the
dictatorship, the State acknowledges the circumstances under which the
judges who ordered the petitioners detention were operating.
However, elementary reasons of juridical security and continuity
and the validity of the rulings handed down by the judges on the bench
between 1976 and 1983with the same authority and legitimacy as those
of the magistrates on the bench under the de
jure governmentscounter the arguments to the effect that there
was not administration of justice during that period. It also argues
that the petitioners generalized allegation that law 20.840 under
which the Hanríquez were prosecuted was unconstitutional and subsequently
struck down, and that the Judiciary during the de
facto government were not independent, is not sufficient to prove
that preventive detention pending trial, ordered by judges with jurisdiction
in a case on the basis of a law that predated the facts in the case is
unlawful. The State does
not deny that human rights violations may have occurred under the de
facto government, as a consequence of detentions ordered by courts
on the basis of a law that predated the facts.
But it cannot consent to a reparations claim unless an attempt
is first made to prove the human rights violation by exhausting domestic
remedies. The petitioners,
however, do not show that they made any such attempt at the domestic level.
The Commission will examine the criteria established in paragraph
37: a) whether law 24.043 allows different treatment in analogous situations;
b) if so, whether the distinction is justified and reasonable; and c)
whether the means used are proportional to the ends sought.
This is not a general and abstract judgment as to whether law 24.043
is compatible with Article 24 of the Convention; instead, the intent is
to confirm whether or not the discrimination alleged by the petitioners
is present in this specific case.
Finally, the Commissions conclusions might turn out differently
if the factual premises asserted differ from those made by the petitioners
in the instant case.
Different treatment in similar or analogous situations
The Commission considers that no definitive finding need be reached
on the question of whether the Hanríquez situation was analogous
or similar to the situations contemplated in law 24.043.
Even assuming it was, the facts alleged by the petitioners would
not constitute violations of Article 24 of the Convention, for the following
b. and c.
Reasonable justification and proportionality between the means
used and the ends sought
The Commission considers that no conclusion on this point can be
reached without studying it in relation to the effects of law 24.043.
It must begin, then, by examining the laws effects.
Law 24.043 recognizes reparation in the case of persons who fit
into one of its stated categories and have not been awarded compensation
by a court ruling based on the same facts.
Payment of the compensation to the interested party implies that
the latter waives his/her right to compensation for any damages, injuries
or death caused as a result of an executive-ordered detention or arrest,
or other form of executive control.
It prohibits any other benefit or compensation for the same facts.
To claim this benefit, one must pursue the very summary administrative
proceeding that the law establishes.
The compensation owed to each beneficiary is a sum equal to the
amount stipulated in the law, multiplied by the number of days that the
executive-ordered detention, arrest, or confinement lasted.
Payment of the amount owed can be effected in accordance with law
23,982, concerning the debts of the State.
Even though the law uses the term benefitas did
the State on several occasions in the course of this proceeding-to refer
to the compensation, the latter is not a payment ex-gratia.
To the contrary, the restitution accorded through this proceeding
is reparation for violation of one of the States international obligations
and as such is mandatory, not optional.
However, the effect of law 24.043 is not to establish a substantive
right to a compensation for the persons it covers and preclude those not
covered. Instead, law 24.043
merely regulates a special procedure that will be used to determine: a)
whether compensation is owed, b) the amount of the compensation, and c)
the manner of payment. In short, routinely the normal internal channel
for a person to claim the compensation he is due for human rights violations
attributable to the State is a lawsuit against the State for damages and
injuries resulting from its wrongful acts and the like, which are on the
whole applicable in the case of liability suits against the State.
In this case, however, law 24.043 gives the persons it covers the
right to opt instead for the procedure it establishes.
Persons not covered under its provisions are in no way stripped
of their right to file suit for compensation.
The Commission notes that persons who opt for the procedure ex-lege 24.043 enjoy certain prerogatives, but in exchange for conceding
certain rights, among them the right to bring or prosecute an action for
damages and injuries, a right they would have otherwise retained.
Because the procedure established by law 24.043 is voluntary, because
the State and those who subscribe to the procedure ex-lege
24.043 make mutual concessions, and because the compensation paid by virtue
of the mutual concessions is compensation in fulfillment of an international
obligation, the Commission considers that law 24.043 represents an offer
that the State makes to certain persons under the terms of the arrangement:
payment of compensation on condition that the person in question accepts
certain terms. By subscribing
to the corresponding proceeding before the authority competent to apply
the law, the person is giving his/her consent to the terms of the arrangement.
This is consistent with the consequence that the law stipulates,
which is that the beneficiary waives any right to bring any other suit
against the State seeking any form of compensation for the situations
contemplated in the law.
Against this backdrop, the IACHR will examine the States
argument that in the case of persons deprived of their freedom by executive
order, the detention is prima facie
illegitimate, whereas in the case of persons deprived of their freedom
by order of a competent judge, the detention is not prima
facie vitiated, which is what justifies the differing treatment.
This is where the relationship that must exist between the justification
of a law and its effects becomes relevant.
If the intent of the law were to preclude persons not contemplated
therein from the right to compensation, the Commission would have to disagree
with the States argument. In effect, the generalized absence of guarantees prevailing
in the Argentine judicial branch of government during the era of the dictatorship
has been well documented by the Commission, and was noted by the petitioners.
Victims of the abuses perpetrated by that branch of government
have the same substantive right to redress as the victim of any violation
of a right protected by the Convention.
However, as already indicated, law 24.043 does anything but preclude
an individuals right to compensation; instead, it creates a special
procedure whereby some persons may opt to file a claim for compensation. The Commission must assess whether the States justification
for this effect is objective and reasonable.
The Commission considers that the justification offered by the
State to make the distinction, i.e., that the executive-ordered detention
is prima facie vitiated whereas the detention ordered by federal judges
is not, is objective and reasonable, given the fact that the effect of
the law is to give persons who qualify under its provisions the right
to pursue a special procedure to arrange compensation for human rights
violations. It also finds
proportionality between the means used and the aim sought.
Finally, the Commission concludes that the distinction embodied
in law 24.043 does not violate Article 24 of the Convention.
Application of law
In addition to challenging the law, the petitioners contend that
in the same case and same court ruling, the Hanríquez siblings were acquitted
and the other persons convicted, namely Armando Atilio Benítez, Jorge
Rearte and Escolástica Esperanza Riveros de Ferreira.
In the case of the latter three, the Office of the Under Secretary
for Human Rights recognized their entitlement to compensation for the
full period of their detention, including their court-ordered detention. The petitioners argue that the State gave unequal treatment
to persons included in the same judicial action.
The State argues that the persons named by the petitioners as examples
of persons supposedly in their same predicament were in fact not in the
same predicament at all. Law
24.043 theoretically redresses two types of arbitrary detention endured
by persons during the period from November 6, 1974 and December 10, 1983:
detention by order of the national executive branch and civilians detained
on orders of military tribunals.
The authority for interpreting the spirit of the law expanded the
scope of the specific situations that the State should consider. However, in all cases in which persons were detained by executive
order and court order simultaneously, the standard followed was to recognize
the benefit in respect of the period during which the party in question
was held under an executive order, and to exclude any time period when
the person was held solely by virtue of a court order.
In the cases that the petitioners cite-Florencio Pacífico Herrera,
Armando Atilio Benítez and Jorge Rearte-, an executive order put them
under the control of the executive branch of government; a subsequent
executive decree ordered their release.
The period counted for purposes of the compensation was the interim
between the two orders. Their
situation, therefore, was not the same as the petitioners in that
there was no executive decree involved in the petitioners case;
their detention was exclusively by virtue of a court order.
The Commission must begin by determining whether treatment is different
in analogous or similar situations.
In the instant case, it is a question of determining whether the
Hanríquez situation at the time was analogous or similar to that
of Florencio Pacífico Herrera, Armando Atilio Benítez and Jorge Rearte.
The Commission notes that the cases of Florencio Pacífico Herrera,
Armando Atilio Benítez and Jorge Rearte, which the petitioners cite, has
one feature that distinguishes them from the Hanríquez alleged situation.
In the former case, the court order of arrest and the executive
order of detention overlapped, as the State has demonstrated with copies
of the respective decrees ordering detention and the end to the detention
period. In fact, the situation
of Florencio Pacífico Herrera, Armando Atilio Benítez and Jorge Rearte
is one of those contemplated in Law 24.043.
The Hanríquez, on the other hand, are claiming a right to compensation
for a period of detention that was strictly court ordered. Moreover, although
not part of the instant case, their claim for compensation for the eight-day
period they were held on orders from the military authorities was granted.
While in principle the Hanríquez situation was neither similar
nor analogous to that of Florencio Pacífico Herrera, Armando Atilio Benítez
and Jorge Rearte, the Commission wishes to make the following points clear.
The Commission notes that the petitioners do not deny that the
Hanríquez situation does not fit into any of the hypotheticals posited
in law 24.043. Under Article
1 of Law 24.043, persons who can invoke the law are: 1) those who, during
the state of siege, were under the control of the National Executive Power,
by the latters decision and 2) those who, as civilians,
were in custody by order of military tribunals.
The petitioners are seeking to have the benefit of compensation
extended to those who, like themselves, were denied their freedom exclusively
by court order and, in this specific case, for a violation of law 28,040,
which was eventually struck down when democratic government was restored.
Furthermore, inasmuch as the petitioners did not challenge them,
the Commission accepts the States assertions concerning the criterion
that internal organs are using to interpret and apply law 24.043 and the
consistency with which that criterion has been applied.
The State asserts that the criterion adopted has been to grant
compensation to persons detained by executive order, for the period they
were detained, as the law requires, regardless of whether those persons
were being held simultaneously by order of another branch of government.
By contrast, compensation is not being awarded in the case of persons
detained solely by court order, with no concurrent executive order of
The core issue, therefore, is the criterion used by the organs
of the State to interpret a domestic law; a criterion applied across-the-board
to persons whose circumstances are the same.
The Commission, therefore, understands that the domestic organs
application of the law has not produced a violation of the right to equal
protection of the law, upheld in the Convention.
Commission considers that the petitioners have not shown that their situations
were similar or analogous to that of the other persons prosecuted with
them and who received the compensation.
The Commission, therefore, concludes that the domestic courts
application of the law in the Hanríquez case did not violate Article
24 of the Convention.
The fact that the factual situation that the petitioners describe
was not one of those covered under law 24.043 does not make the law discriminatory
in the sense of Article 24 of the Convention.
Also, the petitioners have not shown that the Hanríquez situation
was similar or analogous to that of the individuals prosecuted with them
and who received the compensation.
Consequently, the Commission concludes that the facts alleged by
the petitioners do not constitute a violation of Article 24 of the Convention.
Based on the foregoing arguments of fact and of law,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare that the facts alleged by the petitioners do not constitute
violations of Article 24 of the Convention.
To send the present report to the parties, make it public and include
it in its annual report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights in the city of Washington, D.C., on the third day of October
in the year 2000. (Signed):
Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Juan Méndez, Second Vice-Chairman; Commissioners Marta Altolaguirre, Robert
K. Goldman, Peter Laurie and Julio Prado Vallejo.
The second Vice Chairman of the Commission, Juan E. Méndez, an Argentine
national, did not participate in the discussion of and decision on
this report, in compliance with Article 19(2)(a) of the Commissions
Article 2 of law 20.840 reads as follows: The following shall
be punishable with imprisonment of two to six years: c) possession,
display, printing, editing, reproduction, distribution or handling,
by whatever means, of printed or taped material reporting or circulating
facts, communications or images of the conduct described under Article
1º. Article 1º,
in turn, states the following: Provided the action committed
does not constitute an offense carrying a more serious punishment,
the following conduct shall be punishable by incarceration of three
to eight years: attempting or planning, by whatever means, to alter
or bring down the institutional order and social peace of the Nation,
via means not recognized in the Constitution and laws ordering the
nations political, economic and social life, all for the sake
of achieving the ends of ones ideological principles.
Appellate Court C.A.F., 18/2/98.
See regulatory decree 1023/92.
The State is citing from Report Nº 30/97, Gustavo
Carranza Case, para. 55.
The instrument of ratification was deposited with the General Secretariat
of the Organization of American States on September 5, 1984.
IACHR, Report 38/99, Víctor Saldaño petition, Argentina, Annual Report of the IACHR 1998,
A number of remedies exist in the legal system of every country, but
not all are applicable in every circumstance.
Therefore, remedies that, although theoretically of a nature
to constitute remedies, do not in reality offer any chance of redressing
the alleged breach, need not be exhausted.
It is up to the State alleging a failure to exhaust the remedies
under domestic law to prove that adequate and effective remedies are
still available. Inter-American
Court of Human Rights. Velásquez
Rodríguez Case, Judgment of July
29, 1988, paragraphs 63, 64 and 88.
Law 24.043, enacted December 23, 1991, Article 1.
See, inter alia, Inter-American
Commission on Human Rights, Report Nº 22/00, Case 11.732, Argentina.
Decision of March 7, 2000, para. 32.
Inter-American Court of Human Rights, Proposed
amendments to the naturalization provisions of the Constitution of
Costa Rica, Advisory opinion OC-4/84 of January 19, 1984, (Ser.
A) No. 4 (1984); see also id. Separate vote of Judge Piza Escalante,
para. 12 (citing the European Court: It is important, then,
to look for the criteria which enable a determination to be made as
to whether or not a given difference in treatment, concerning of course
the exercise of one of the rights and freedoms set forth, contravenes
Article 14. On this question the Court, following the principles which
may be extracted from the legal practice of a large number of democratic
States, holds that the principle of equality of treatment is violated
if the distinction has no objective and reasonable justification.
The existence of such a justification must be assessed in relation
to the aim and effects of the measure under consideration, regard
being had to the principles which normally prevail in democratic societies.
A difference of treatment in the exercise of a right laid down
in the Convention must not only pursue a legitimate aim: Article 14
is likewise violated when it is clearly established that there is
no reasonable relationship of proportionality between the means employed
and the aim sought to be realized).
In the case of Johnston and
others, the European Courts decision of 18 December 1986,
the following in paragraph 60: Article 14 (art. 14) safeguards persons who are placed in analogous situations
against discriminatory differences of treatment ( ) (see, as the most recent authority, the Lithgow and Others
judgment of 8 July 1986, Series A no. 102, p. 66, § 177).
Law 24.043, enacted 23 December 1991, Article 1.
Id., Article 9.
Id., Article 3. Decree 1023/92 regulates the procedure.
Id., Article 4.
Id., Article 7. Under law 23982, the State may pay the compensation
in public bonds.
 Provided for in statutory decree 1023/92.