In the Garrido and Baigorria Case,
the Inter-American Court of Human Rights, composed of the following judges:
Héctor Fix-Zamudio, President
Hernán Salgado-Pesantes, Vice President
Alejandro Montiel-Argüello, Judge
Máximo Pacheco-Gómez, Judge
Oliver Jackman, Judge
Alirio Abreu-Burelli, Judge
Antônio A. Cançado Trindade, Judge
Julio A. Barberis, Judge ad hoc
Manuel E. Ventura-Robles, Secretary, and
Víctor Manuel Rodríguez-Rescia, Interim Deputy Secretary,
delivers the following Order in the instant Case interposed by the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the Inter-American Commission") against the Republic of Argentina (hereinafter "Argentina" or "the Government".)
1. On February 2, 1996, the Court delivered a Judgment on the merits in this dispute. In its decision, the Court took note "of Argentina's recognition concerning the facts set out in the petition" and "its recognition of international responsibility for those events." The Tribunal also granted "the parties a period of six months from the date of the present judgment to reach an agreement on reparations and compensation."
2. On August 1, 1996, that is, one day before the term established in the Judgment expired, the delegate of the Inter-American Commission wrote to the Court seeking a ten-day extension of the term granted. His note was accompanied by three similar extension requests addressed to the Inter-American Commission by the ad hoc commission of inquiry established as part of the friendly-settlement procedure (July 19, 1996); by one of the representatives of the victims (July 24, 1996), and by the agent of the Government of Argentina (July 30, 1996).
Inasmuch as the period of six months had been prescribed in the Judgment, the President of the Court informed the parties that it could only be changed by the Court itself and that, to that end, he would inform the Tribunal of the request at its next Session, and that "[m]eanwhile, the interested parties may continue to negotiate an agreement on reparations in the Garrido and Baigorria Case and inform the Court of the results in due course."
3. In a note received at the Secretariat of the Court on September 6, 1996, Mr. Robert K. Goldman, delegate of the Commission, informed the Court of "the outcome of the friendly-settlement procedure in the case" and attached a copy of the pertinent documents.
4. The attached documents contained a declaration signed on May 31, 1996, the preamble to which invoked Article 28 of the American Convention on Human Rights (hereinafter "the American Convention") which contains a so-called "Federal Clause". This article was invoked by Argentina at one juncture in the process to claim that the Province of Mendoza, rather than the country, was responsible for the events relating to this dispute. However, at the public hearing held on February 1, 1996, Argentina abandoned that position and its agent acknowledged the country's international responsibility and "reiterated the recognition of international responsibility of the Argentine State in the case in question" (Garrido and Baigorria Case, Judgment of February 2, 1996. Series C No. 26, paras. 24 and 25).
5. In the first place, the declaration provided for the establishment of an arbitration tribunal to determine the "amount of the indemnity." Its members would be appointed in accordance with the rules in force in the Province of Mendoza. Once the tribunal had been set up, the victims' representative and the Government of Mendoza could submit a brief with their requests and defenses. The declaration provided that, should there be no suitable procedural norms, those contained in the Civil and Commercial Codes of the Province of Mendoza would apply instead for the purpose of the arbitration proceeding.
The judgment was to be issued by midnight on June 28, 1996. The declaration added that the "parties may appeal the decision in the event of arbitrariness."
6. In addition to arbitration to determine the amount of indemnity to be paid, the declaration provided for the creation of an ad hoc commission, which should start its activity before June 21, 1996, with the following terms of reference
... its purpose shall be to ascertain the real truth. It shall issue a decision on the events surrounding the disappearance of persons being investigated in case 11.009 ... on the Register of the Inter-American Commission on Human Rights, those responsible for the events and developments in the investigation from the outset in the domestic courts and shall suggest measures to be taken in that regard.
7. The declaration provided that its entry into force was contingent on its ratification by the Government of Mendoza and the victims' relatives by midnight on June 4, 1996. It added that the Government of Mendoza would submit to the authority of the Supreme Court of Justice of the Province with regard to the investigations conducted by the provincial Judiciary.
8. The Governor of Mendoza ratified the agreement through Decree No. 673 of June 4, 1996, Article 1, which stipulates that:
There must be ratification of the agreement entered into by the Deputy Secretary for Justice of the Ministry of the Government representing the Province of Mendoza, with the representatives of the litigant families and intervention by the agent of the Argentine Government, Ambassador Zelmira Mireya Emilse Regazzoli, for the solution of cases 11.009 and 11.217 under consideration by the Inter-American Commission, the former having been submitted to the Inter-American Court of Human Rights.
The aforementioned Decree states in one of its consideranda:
That the Province of Mendoza is deemed to be an obligated state in the terms of the Federal Clause contained in Article 28 of the American Convention on Human Rights
9. On June 21, 1996 the Supreme Court of Justice of Mendoza decided, through Accord No. 14.342, that the terms of reference of the ad hoc commission must conform to the rules of procedure in force in the Province and to Article 144, paragraph 1, of its Constitution. It also decided that the judicial authorities of the Province would lend their support to the ad hoc commission to enable it to fulfill its functions effectively.
10. The arbitration tribunal provided for in the declaration issued its decision on June 25, 1996. On July 2 of that year, the attorneys for the victims' families contested the decision on the ground of arbitrariness.
11. The ad hoc commission produced its Report on August 16, 1996. In a note of September 4, 1996 the delegate of the Commission, Mr. Robert K. Goldman, wrote:
With regard to the investigation, in my view the ad hoc Commission's Report reflects the exhaustive labor of its members and collaborators. It is my opinion that the points foreseen in paragraph (2) of the agreement for a friendly settlement have been fulfilled with regard to verification of the events, the review of steps covered during the domestic proceeding, and the consequent criminal liability. The conclusions and recommendations contained in the report are timely and of great importance, bearing in mind the gravity of the events denounced.
12. The Court forwarded to the Government the note of September 4, 1996 and its attachments as submitted by the Commission. By note of October 24, 1996 from Buenos Aires, the agent of the Commission declared that "she had no comments to make on the agreement."
13. The Secretariat of the Commission stated in a note of October 23, 1996 to the Court that, "in the light of the new information received,... it should be clear that the Commission's point of view is as follows: the Garrido and Baigorria case will not be settled until such time as the August 16, 1996 recommendations of the ad hoc Commission of inquiry are put into effect."
14. On October 31, 1996, Ms. Viviana Krsticevic, Mr. José Miguel Vivanco, Mr. Martín Abregú, and Mr. Ariel Dulitzky, as "representatives of the victims' relatives", notified the Court of their opinion on the documents produced in connection with the May 31 declaration. With regard to the ruling of the arbitration tribunal, they declared that they were negotiating with the Argentine Government additional compensation to that established in the ruling. Concerning the finding of the ad hoc commission, they stated that full reparation to the families also implied due sanction of those responsible and that this was "an unquestioned requirement for serving the victims' interests." They felt that failure to undertake a criminal or other investigation of the persons named in the ad hoc commission's Report and the lack of corresponding sanctions still constituted "irreparable obstacles to the conclusion of this Case." They therefore requested the Court to "keep this proceeding open until such time as all aspects of the agreement reached by the parties have been complied with."
This declaration was ratified on November 20, 1996, by Mr. Carlos Varela-Alvarez and Mr. Diego J. Lavado, the original attorneys for the victims' relatives.
15. The facts described do not permit the Court to conclude that the parties have reached agreement on reparations and indemnities in accordance with operative paragraphs 3 and 4 of the judgment of February 2, 1996. In particular, the Court wishes to underline two significant points, each of which is sufficiently eloquent in its own right to demonstrate the lack of agreement.
The first is that the agreement was to have been worked out by the parties in this dispute. One of them is the Argentine Republic and not the Province of Mendoza, as clearly recognized by the Government's alternate agent on February 1, 1996. Instead, the declaration of May 31, 1996, invokes Article 28 of the American Convention to name the Province of Mendoza as a party. This conclusion is reaffirmed in decree Nº 673 issued by the Governor of said Province and by the ruling of June 25, 1996, which cites the relatives of the victims and the Government of Mendoza as parties.
The second point concerns the arbitration ruling. The May 31 declaration states that the "parties may appeal against the ruling in the event of arbitrariness." On July 2, 1996 the victims' relatives challenged the tribunal's decision on the ground of arbitrariness (supra, para. 10). On this question the Commission's delegate stated in his note of September 4:
In my view, the criteria applied by the Arbitration Tribunal and the conclusion arrived at thereto are acceptable within the context of the instant case and the points contained in the settlement agreement.I have taken note of two of the petitioners's disagreement with the interpretation and application of Argentine and international jurisprudence in the ruling. It is for the prudent jurisdiction of the Court to establish the presence of the invoked ground of arbitrariness (underlining added by the Court).
This Court is not an appeals court and can therefore only establish that the ruling was not unanimously accepted.
16. Given the lack of agreement between the parties on reparations and compensation, the Court shall determine the procedure to be followed at this stage of the Case (Art. 56(1) of the Rules of Procedure in force since January 1, 1997). The Court feels that this must consist essentially of a presentation of writings and evidence by the Commission, another by the victims' relatives for the same purpose, and a response from the Government invoking its arguments and evidence. In accordance with Article 4.1 (f) of the Rules of Procedure, the President of the Court is authorized to determine the terms of presentations, convene hearings, and adopt the measures of procedure he deems necessary.
17. Taking into account the provisions of Article 23 of the Rules of Procedure, the representatives of the victims' families may present their accreditation to the Secretariat of the Court by means of proxies or mandates to act as such.
18. THE INTER-AMERICAN COURT OF HUMAN RIGHTS,
in accordance with Article 29 of its Rules of Procedure,
by seven votes to one:
Establishes that the parties have not reached agreement on reparations and compensation.
AND NOW, THEREFORE,
1. To open the proceedings on reparations and compensation the President being empowered to adopt the procedural measures as indicated in paragraph 16 of this Order.
2. That the representatives and attorneys of the victims' relatives shall comply with the contents of paragraph 17 of this Order.
Judge Montiel-Argüello informed the Court of his Dissenting Opinion, which is attached hereto.
Done in Spanish and English, the Spanish text being authentic, in San Jose, Costa Rica, on this thirty-first day of January, 1997.