25. They also maintain that in examining the reasonableness of the duration of cases, the fact that the matter under discussion is social security should also be taken into consideration. Given their age, retirees and/or pensioners comprise one of society’s most vulnerable groups, which intensifies their reliance on public assistance. If proceedings are unduly long and judicial remedies not effective, it may be impossible for them to enjoy the rights to social security, health, and physical and mental integrity. Courts should be all the more diligent when dealing with social security, as any delay may render the proceedings futile.
The petitioners hold that many court judgments have gone unenforced
since Law 24.463 took effect, and that actions of ANSES aim to prolong
legal proceedings indefinitely.
The petitioners maintain that certain provisions of Law 24.463 are
incompatible with Articles 8 and 25 of the Convention.
They state that Articles 5 and 7 of that law have led to a system
with an unchanging level of benefits, which have been frozen since 1 April
1991 with the one exception of a 3.28% increase granted in September 1993.
They also claim that Articles 16 and 17 grant the State powers and
procedural prerogatives such as the capacity to allege a limitation on
monies and to use expert testimony prepared by the Office of the Auditor
General, something no other debtor in Argentina can do to become exempt
from complying with a court order. They point out that these special powers can even be used to
impede progress in adjustment of pension levels.
Articles 16 and 22 taken together allow for postponement in
compliance with or enforcement of court judgments providing for
adjustments to the benefits of retirees on the basis of a lack of
They add that Articles 22 and 23 of Law 24.464 proscribe
enforcement, fines and other sanctions against civil servants who do not
comply with court orders, as well as any other action that could compel
the state to comply with judgments. Moreover, these articles keep judges
from setting deadlines for compliance with the judgment.
Specifically, Article 23 deprives judges of the capacity to make their own
judgments effective. This
goes against the balance of powers and the stability of court actions.
This also explains why there are unreasonable delays in total or
partial compliance with final court judgments, obligating everyone
involved to litigate ad infinitum
The petitioners maintain that Law 3.952 of 1902, whose application
is supplemental, stipulates that any judgments against the state shall be
merely declarative in nature and limited to the recognition of the right
in question. The petitioners
argue that the doctrine of the Rule of Law supersedes such discretionary
criteria typical of state absolutism.
The judicial is the only branch of government that the constitution
recognizes as having the power to interpret law and determine if emergency
measures taken to limit compliance with court judgments regarding
adjustment to benefits due retirees and pensioners are reasonable or not.
Neither the legislative nor the executive branch is empowered to prohibit
judges from establishing deadlines for compliance with their judgments,
and all the more so when the goal is not good administration but eternal
delay in compliance with decisions favorable to retirees and pensioners. They hold that budgetary limitations are being used as an
obstacle to truly effective remedy,
and therefore violation of Article 25 of the Convention is more closely
linked to enforcement of judgments than to determination of rights.
They claim that the State cannot claim a “state of
emergency in the pension system” with the objective of restricting the
rights of retirees, especially when they give no specific explanation of
the economic crisis, the gravity of the emergency, the means being used to
resolve it, or the time the exceptions will remain in effect (as required
by Article 27 of the Convention). Nor
has the State informed the other States Parties of the suspension of
rights due to an alleged emergency. Even
if one proceeds on the supposition that the arguments of the State are
acceptable, still the full effectiveness of legal guarantees and of
remedies must be maintained as such rights cannot be suspended or
The petitioners also claim that the right to social security
was violated in its relation to the duty to work and contribute to the
social security system. All the petitioning retirees contributed to the
system for years and Article 14(bis) of the Argentine Constitution
guarantees an economically and financially independent retirement system
with adjustable pensions. At
various time the petitioners have stressed that “The intention is not to
question the policies adopted by the State or to debate the measures it
has implemented. The petitioners are not asking the Commission to set the
amount of pensions or comment on the system’s structure or the general
situation of retirees.”
In regard to the other rights mentioned, the petitioners
maintain that a pension is part of one’s property and thus covered by
the right to property. They
say that pensions have dwindled to the point of becoming meaningless, due
to their growing outdatedness
and unwarranted delays in enforcing judgments recognizing this right.
Moreover, the retirement system violates the right to equal protection of
the law since certain groups of retirees, such as former legislators,
judges, members of the armed forces and ministers can be considered
They also mention “pensions of privilege” and “pensions to be
thankful for.” The
petitioners hold that their rights to health, well-being and life are
being affected, as their only source of income–and thus of purchasing
food and surviving–is being threatened. And since most of them do not
have access to any other source of income, they cannot afford basic
services and needed medicine. They go on to point out that since the implementation of the
economic plan in 1991, the mortality rate of the elderly has been on the
The State has argued that the
IACHR should declare the case inadmissible for the reasons outlined upon
continuation. The State
claims that pension levels “Can be considered reasonable when compared
to average income in the country.”
It counters arguments that retirees are being left defenseless and
that they are being denied access to the courts.
The State also defends the procedural system put in place by law,
saying that ANSES was previously rendered defenseless and that the
situation created by awards contained in judgments had put the system
“in a virtual state of collapse.”
The system in place before the 1995 reforms provided for appeal to
the corresponding judicial body in the case of an administrative claim
being rejected, in accordance with Articles 8 and 9 of Law 24.473.
The Law on Social Solidarity does not provide for an initial
administrative stage to be regulated by the Law on Administrative
Procedures (Law 19.549). The
beneficiary is only required to file a claim and the administrating body
then has to say whether it admits it totally, in part or not at all.
The State maintains that the measures in question are measures of
public order, as they were born of necessity and instituted for the public
good. It cites CSJN jurisprudence that establishes that no one can
possess an acquired right that goes against public order.
Moreover, it cites the reservation Argentina placed in Article 21
when it ratified the Convention.
The State refers to CSJN jurisprudence and doctrine, maintaining
that Law 24.463 is constitutional. The
time limit stipulated in Article 22 is based on situations outside the
control of the State and all increases in pension payments are subject to
an increase in the system’s resources.
The State’s actions were and are aimed at insuring the
continuation of the right to a pension in direct relation to the economic
resources generated in Argentina within the framework of general economic
stability and the principles of collective solidarity governing any social
security system. Within
limits established impartially by economic recovery and growth, the State
promoted measures to achieve the full realization of human rights, in line
with Article 26 of the Convention.
The onset of hyperinflation in 1989 brought the social security
system to the brink of collapse. Later
on the State was taken unawares by the great number of judgments with
which it was simply impossible to comply and which, along with other
cases, tore up standing law. That
is the background to a social security emergency being declared in the
early 1990s. An effort was
made to strike a balance in the distribution of scarce resources with the
goal of guaranteeing the right to social security in line with available
resources. This is why
judgments against the State are not immediately enforceable. Instead, they
convey an order to the Legislature to include the credit in the annual
budget. The basis of this is
a universal public law principle, namely the unenforceability of
judgments, which was incorporated into Argentine law early last century
through Law 3.952, making such judgments merely declarative.
The State maintains that the pension system is a major element of
its economic policy, as shown by the fact that social security represents
40% of national budgetary expenditures.
The State maintains that the right to property is not affected by
its actions. To the contrary, it claims to have preserved property on
behalf of all beneficiaries and to have assured that they will continue to
be paid. The State holds that
it has not gone against the public order, as it is not a direct debtor
without limits on what it owes within the system.
It is the administrator and as such it tries to assure that the
right to social security is conserved and maintained effective, and it can
decide to postpone judgments that affect the fund until the financial
situation has improved. Awards
made to litigants have not been cancelled, but only suspended for the
reasons explained. The State
supports social services with additional income from privatizations, taxes
and Treasury contributions. By
establishing a list indicating in what order awards will be paid, it lends
a legal order to the situation and sets priorities for settling equally
valid claims on the same funds. In regard to paying with bonds, the State
claims that it has not discriminated against retirees.
To the contrary, it holds that it has granted them exemptions that
other creditors have not received and that the debt to suppliers was paid
in the same way as the debt to pensioners.
The legal battles afflicting the Social Security system have
occurred in a context marked by an economic and social crisis and the
State’s efforts to respond to it. Certain by-products of this situation
were not understood by a number of pensioners, who instigated thousands of
cases, overloading the labor courts charged with hearing them.
In response, Law 23.473 of 25 March 1987 created the Social
Security courts, organized through the Appeals Chambers, which until March
1995 acted as courts of review for the administrative decisions of ANSES.
The procedure was unilateral and excluded the administration from
participating, thereby eliminating the constitutional right to a defense
in court. It made it easy to formulate claims rooted in theory only,
which were then validated in judgments.
But no attention was given to the financial health of the system as
a whole, possible socio-economic repercussions, or the specific
circumstances related to the aims of the plaintiff.
Nine members comprise the CSJN.
A small support staff is in charge of the numerous requests its
receives for information in its diverse areas of competence.
In 1995, the pensioners involved in such legal cases initiated
proceedings to have Law 24.463 declared unconstitutional.
These proceedings, begun in May 1995, lasted more than a year.
Taking this into account, the State cannot be said to have delayed
38. The State maintains that guarantees in the realm of social security are related to a program and are not based on regulations. The automatic adjustment mechanism is not rooted in the constitution and must take into account the financial health of the system, which is something the legislature must take under study. It is necessary to try to balance the interests of the majority of pensioners who do not litigate (90%) with those of the minority who do (10%). The overall health of the system has been given priority because nontransferable and irrecusable rights to the same patrimony are involved. The State does not cast doubt on the tight situation of pensioners receiving the minimum, but that situation was not brought about by the government. Rather it is the result of an unfair system based on a corporatist way of thinking that the State is trying to overcome. But change will require time, resources and deep cultural transformation. The State believes that complainants’ objections are clearly ideological in nature and that the complaints before the IACHR are but isolated acts and not a reflection of the general situation in Argentina. In its last submission, the State describes the current state of affairs of the administrative complaints and court cases involving petitioners. It holds that in no case is there a violation. If there were delays previously, that was due to a severe crisis in granting and carrying out hearings. Currently, the State maintains, this is but an abstract question outside the Commission’s competence.
Ratione loci, ratione
personae, ratione temporis and ratione materiae competence of the
The Commission has competence to examine the case.
The State is a party to the Convention and deposited its instrument
of ratification with the General Secretariat of the Organization of
American States on 5 September 1984. Events related to the petitioners’ complaints occurred
after said ratification with prejudice to the persons identified in Table
I above, as required by Article 44 of the Convention in combination with
Article 1(2) of the same. The
petition was lodged by the petitioners identified in Table I above, and in
accordance with Article 44 of the Convention, they are persons qualified
to lodge petitions with the Commission.
In regard to ratione materiae,
the IACHR notes that the original petitioners maintained that the State
violated their rights to a fair trial (Article 8), to property (Article
21) and to effective remedy (Article 25(2)(c), and that it also violated
the obligation to respect the rights recognized in the Convention (Article
1(1) and to take measures to give them effect (Article 2). They also held that the State violated the following rights
recognized in the American Declaration: to life (Article I), to the
preservation of health and to well-being (Article XI), to a fair trial
(Article XVIII), to property (Article XXIII) and to social security in
relation with the duty to work and contribute to social security (Articles
XVI, XXXV and XXXVII). Subsequent
petitions joined to this case (see Paragraph 7 above) fundamentally laid
claim to the same rights as the original petitioners, while in some no
article of the Convention was invoked.
Thus the Commission deems it correct and appropriate to examine all
the petitions in light of the rights claimed by the original petitioners.
The Commission deems that once the Convention has entered into
force in a State, it and not the Declaration becomes the specific source
of law to be applied by the Commission,
as long as the petition alleges violation of substantially identical
rights set forth in both instruments
and a continuing situation is not involved.
In the case under consideration, the parts of the Declaration and
the Convention invoked by the petitions treat similar matters. The rights
to a fair trial (Article XVIII) and to private property (Article XXIII)
enshrined in the Declaration are subsumed in the provisions of Articles 8
and 21 of the Convention. Thus,
the Commission will refer only to the norms of the Convention when
addressing the above-mentioned violations of the Declaration.
In regard to the rights of equal protection of the law (Article 24)
and to effective remedy (Article 25(2)(c)), and to the obligation of the
State to respect rights (Article 1(1)) and to adopt measures to give them
effect (Article 2), the petitioners did not cite any parallel rule
contained in the Declaration.
The rights to the preservation of health and to well-being (Article
XI) and to social security in relation with the duty to work and
contribute to social security (Articles XVI, XXXV and XXXVII) contained in
the Declaration are not specifically protected by the Convention. Nonetheless, the Commission esteems that this circumstance
doe not exclude its competence over the subject matter, as Article 29(d)
provides that “(No provision of this
Convention shall be interpreted…) as excluding or limiting the effect
that the American Declaration of the Rights and Duties of Man and other
international acts of the same nature may have.” Thus the Commission
will also examine the petitioners’ allegations on violations of the
Other Admissibility Requirements
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention establishes that admission of a
petition shall be subject to the requirement “that the remedies under
domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law.” In this case, the IACHR
esteems that the petitioners have charged that violations of Articles 1,
2, 21 and 24 of the Convention and of Articles XI, XVI, XXXV, and XXXVII
of the Declaration are ancillary to violation of Articles 8 and 25 of the
Convention. The situations set out by the various petitioners will now be
with procedural delays still awaiting final judgment
In regard to the exhaustion of domestic remedies, the petitioners
listed in Table 2 above claim that there were unwarranted delays on the
part of the competent bodies in rendering final judgment on the rights and
obligations involved in their cases.
Eduardo Agro points to a delay of more than six years before
the CSJN. José Heribe
Agrofolio explains that his case has been before the CSS for more than
three years. Pedro S.
Ambrosetti indicates that his case has been before the CSS for more
than five years. Enrique
Domingo Amodeo points out that his case has been before the CSS for
more than four years. And Amancio Modesto Pafundi indicates that
more than five years have gone by since he initiated his administrative
In accordance with Article 46(2)(c) of the Convention, the rule on
exhaustion of domestic remedies contained in Article 46(1)(a) shall not be
applied when “There has been unwarranted delay in rendering a final
judgment under the aforementioned remedies.” The petitioners claim that
the date the administrative complaint was lodged should serve as the
starting point for measuring delay. The State has said that the system in
place before the 1995 reforms, in accordance with Articles 8 and 9 of Law
23.473, provided for appeal to the corresponding judicial body in the case
of the administrative complaint being rejected. In the procedures it sets
out, the Law on Social Solidarity does not provide for an initial
administrative stage regulated by the Law on Administrative Procedures
(Law No. 19.549). The beneficiary is simply required to lodge a claim and
without further ado the administrating body is supposed to say if it will
admit it fully, partially or not at all.
The Commission agrees with the petitioners that when examining the
exception to the rule on exhaustion of domestic remedies set out in
Article 46(2)(c), the date to be used as a starting point should be the
date the administrative complaint was lodged. According to the notion of
an overall analysis of the procedure,
a case on rights, be it civil or administrative in nature, may be examined
in the first instance by a body that is not a court, as long as the case
can be presented in a reasonable period of time before a court with
competence to try it in regard to both facts and law.
In this case the IACHR notes that the State has pointed to the fact that
it was mandatory to lodge the complaint with the administrative body, both
under the system in place before the 1995 reform of Law 24.463 and after.
Once the administrative body has determined if payment is in order
and, if so, how much is to be paid, the petitioners could contest the
decision before the corresponding chambers, which without a doubt are
courts in the sense set out in Article 8(1) of the Convention.
Thus the Commission concludes that in this case the administrative
stage of proceeding shall also be taken into account when calculating the
The State has not denied that there have been delays; it has only
brought forth various reasons why the delays have been reasonable. Neither
does the State say that domestic remedies have not been exhausted. In
consequence, the Commission considers that the
State has tacitly
of the rule
in Article 46(1)(a)
of the Convention.
As a consequence, it is not up to the petitioners to show that available
remedies have been exhausted or that one or more of the exceptions
provided for in Article 46(2) are applicable.
Although not all petitioners have indicated the date on which they
originally lodged their complaint, the IACHR esteems that the delays
pointed to in various stages of the proceedings can be considered
sufficient to show that delay has been unwarranted, as required in Article
46(2)(c) of the Convention.
Without detriment to what has
just been stated, the Commission notes that in the cases referred to,
delays have been from approximately three to six years without a final
decision being rendered. The Commission esteems that this constitutes prima
facie an unwarranted delay. In consequence, the exception provided for
in Article 46(2)(c) of the Convention is applicable and the requirement to
exhaust domestic remedies set out in Article 46(1)(a) shall not be
Cases for which a final judgment was rendered but only after
Some of the petitioners listed in Table 3 above maintained that
that they faced unwarranted delays in the processing of their cases before
eventually obtaining a final judgment.
Vittorio Orsi said that six years passed from the time he
lodged an administrative complaint in 1992 until the CSJN pronounced
judgment in 1999. Amilcar Menéndez cited a delay of more than 3 years
from the beginning of his administrative complaint in 1988 until the CSS
rendered a final judgment on it in 1992.
Angela Otero pointed to a delay of four years from the time
the CSS pronounced judgment in 1994 until the CSJN handed down its final
judgment in 1999. Pascual
Piscitelli reported a four-year delay from the time of the CSS
judgment in 1994 until the CSJN judgment of 1999.
Eduardo A. Rodriguez Arias cited a 7-year delay from the
time he lodged an administrative complaint in 1991 until the CSJN rendered
final judgment in 1998.
The petitioners listed in Table 4 claim to have faced the same
circumstances. Juan Manuel Caride waited six years for the CSJN to
issue a decision after initiating an administrative complaint in 1988.
Antonio Carmona waited 7 years from the time he lodged an
administrative complaint in 1986 until the CSS rendered judgment in 1994. And Enrique José Tudor waited seven years from
the time he initiated an administrative complaint in 1990 until the CSJN
issued its judgment in 1997.
The Commission notes that here the State does not claim
non-exhaustion of domestic remedies.
In order to see if domestic remedies have indeed been exhausted in
these cases, the principles formulated above (see paragraph 46) must be
followed. The IACHR considers
that the requirements of Article 46(1)(a) of the Convention have been
satisfied, both in regard to claims of delay in the determination of their
rights in conformity with the provisions of Article 8(1) and to final
judgment. All internal remedies related to the other rights invoked by the
petitioners have been exhausted.
Cases for which a final judgment exists but has not been enforced
due to a priority list
The petitioners listed in Table 3 above have said that, in spite of
having received a final judgment in their favor, enforcement has been
delayed because their cases have been placed on a priority list.
Daniel Acevedo maintains that a final judgment was issued in
his case in February 1999, 1 year and 10 months ago.
Amilcar Menéndez cites a delay of 8 years since he got a
final judgment in 1992. Angel
Amadeo Chañaha says his final judgment was rendered in 1994, more
than six years ago. Pascual
Piscitelli, Vittorio Orsi, Angela Otero and María Elena
Solari all cite delays of more than a year as their judgments were
pronounced in 1999. And Eduardo A. Rodriguez Arias’ judgment was issued
in 1998 and has not yet been enforced.
The Commission notes that here the State does not claim
non-exhaustion of domestic remedies in regard to the petitioners under
consideration. The IACHR here reiterates the principles enunciated in
Paragraph 46 above. The IACHR
esteems that with the rendering of final judgments determining their
rights and obligations, the petitioners have satisfied the requirements of
Article 46(1)(a) of the Convention. In regard to delays in enforcement of
the judgments, the IACHR notes that the petitioners complained about, inter
alia, the application of Law 24.463 that limits the power of judges to
enforce judgments in this area (see Paragraph 26 above).
The State does not deny that enforcement has been postponed. It
only mentions considerations of timing and reasonableness.
Here the Commission must confirm its doctrine that
“Failure to enforce a final judgment is an on-going violation by States
that persists as an infraction of Article 25 of the Convention.”
Article 46(2)(a) of the Convention establishes an exception to
non-exhaustion of domestic remedies when “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.” The Commission thus concludes that in regard to the
petitioners listed in Table 3 above, the rule on exhaustion of domestic
remedies shall not be applied in relation to violation of Article 25 of
in which the judgment has been enforced but with delay or inappropriately
The petitioners listed in Table 5 above stated that their judgments
had been enforced, but only after delays. Moreover, they maintain that the judgments were effectively a
confiscation of their property and as a result they have initiated further
proceedings in Argentina. Roberto
Balciunas stated that judgment on his case was pronounced in 1993, but
enforced only six years later in 1999.
Moreover, it was inappropriately enforced forcing him to lodge an
administrative appeal that is still pending judgment. Juan Manuel Rodríguez pointed to a wait of more than
four years from the time judgment was pronounced on his case in 1986 until
it was enforced in 1990. Moreover,
it was inappropriately enforced causing him to lodge an administrative
appeal that was rejected. Juan
Manuel Caride complained of a delay of more than four years from the
time his case was judged in 1994 until that judgment was enforced in 1998. He also alleges that enforcement was inappropriate.
He again went before the courts in an attempt to obtain the full
amount indicated in the judgment. A
decision is still pending. Enrique
José Tudor complained of a delay of more than two years from the time
judgment was pronounced in 1997 until it was enforced in 1999.
He adds that enforcement was inappropriate and as a result he filed
another suit demanding the full amount stipulated in the judgment. That case is still pending.
Antonio Carmona complained that his judgment was
inappropriately enforced in 1994. He filed for amparo
in 1997 and was granted it on 6 May 1998, but no action to correct the
situation has been taken.
The petitioners have pointed out that they have had to go before
other instances to seek proper enforcement of the judgments obtained
before ANSES, the administrative body charged with payment.
These appeals must also be taken into account to the extent that
their outcome influences the success of litigation pursued before ordinary
jurisdictions. The proceeding
and appeals that the petitioners have had to pursue before ANSES determine
the amount they will receive and when they will receive it. The State has
not claimed non-exhaustion of domestic remedies.
Rather it has stated that the delays are justified in the context
of the emergency facing the social security system, with no reference made
to any of the specific cases lodged by the petitioners.
Here the IACHR again esteems that the principles set forth in
Paragraph 46 above are applicable.
With no detriment to the above, in regard to cases in which the
petitioner has made an administrative or judicial appeal based on the way
the judgment was enforced and on which judgment has been pronounced, such
as the cases of Juan Manuel Rodríguez and Antonio
Carmona, the rule on exhaustion of domestic remedies as provided for
in Article 46(1)(a) of the Convention shall be applied.
The IACHR esteems that in these cases the principle set forth in
Paragraph 54, that “Failure to enforce a final judgment is an on-going
violation by States that persists as an infraction of Article 25 of the
Convention,” is applicable. In
the Roberto Malciunas, Juan Manuel Caride and Enrique José
Tudor cases, the exception to said rule as provided for in Article
46(2)(c) shall be applied, as there is prima
facie indication of unwarranted delay in rendering judgment on the
Article 46(1)(b) of the Convention stipulates that for a
petition to be admissible it must be “Lodged
within a period of six months from the date on which the party alleging
violation of his rights was notified of the final judgment.” This
six-month rule is always applied when a final judgment has been rendered.
According to Article 46(2)(c), the time period requirement shall
not be applied when “There has been unwarranted delay in rendering a
final judgment under the aforementioned remedies.”
In regard to the petitioners listed in Table 2, the
Commission has reached the conclusion that the exception provided for in
Article 46(2)(c) is relevant as there is prima
facie indication of unwarranted delay in rendering final judgment (see
Paragraph 47 above). Given
the circumstances studied and in accordance with the provisions of Article
46(2)(c) of the Convention, the rule on the period for filing is not
The petitioners listed in Table 3 state that final judgment
has been rendered in their cases. The State has not claimed non-compliance
with the rule on the deadline for lodging a complaint. In regard to these
petitioners, the IACHR has reached the conclusion that the exception to
the rule on exhaustion of domestic remedies as provided for in Article
46(1)(a) of the Convention (see paragraphs 53 and 54 above) is applicable.
The Commission thus ratifies its doctrine that “Failure to
enforce a final judgment is an on-going violation by States that persists
as an infraction of Article 25 of the Convention. Therefore, in such
cases, the requirement regarding the deadline for lodging a petition, set
forth in Article 46(1)(b) of the American Convention, is not
Thus, the requirement on the deadline for lodging a petition is not
applicable in this instance, in which the IACHR has been asked to consider
on-going non-compliance with judgments rendered by competent judicial
In the cases listed in Table 5, the petitioners did exhaust
domestic remedies. They appealed the way in which judgments were enforced.
Final judgment has been rendered in some cases and in others it has not
(see Paragraph 57 above). The
State has not claimed non-compliance with the rule on the deadline for
lodging a complaint.
Given the specific circumstances under consideration in this instance, the
Commission esteems that for those cases in which a final judgment has been
rendered, the deadline as provided for in Article 46(1)(b) has been met.
For those cases in which no final judgment has been rendered, the
exception provided for in Article 46(2)(c) of the Convention is
Duplication of procedures and res
Article 46(1)(c) of the Convention, taken in conjunction with
Article 39(2) of the IACHR Rules of Procedure and Article 47(d) of the
Convention, establishes that a petition is admissible only if the subject
of the petition or communication is not pending in another international
proceeding for settlement and that it is not substantially the same as one
previously studied by the Commission or by another international
organization. The Commission notes that the petitioners have presented
final comments of the UN Economic, Social and Cultural Rights Committee
that are related to the subject of this case. Those comments include the
opinion that “Law 24.463… allows the government to reduce and even not
pay pensions by invoking economic hardship.”
The State has said nothing regarding these comments and whether they
emanate from an “international proceeding for settlement”.
The IACHR notes that the above-mentioned committee made its
comments in the framework of periodic reports given by Argentina regarding
compliance with the provisions of the International Covenant of Economic,
Social and Cultural Rights. No
examination of individual cases was made for purposes of judgment.
The Commission deems that Article 47(d) and “Article 46(1)(c)
impl(y) the actual existence of a mechanism whereby the violation
denounced can be effectively resolved between the petitioner and the
authorities of the State or, failing that, the proceeding instituted can
lead to a decision that ends the litigation and/or gives other bodies
Along these same lines, “The procedure in question must be
equivalent to that set forth for the processing of individual petitions in
the inter-American system.”
64. On the basis of
these principles, the IACHR deems that the subject of each and every of
the petitions herein considered has not been examined in the framework of
proceeding for settlement” in the sense meant in Article 47(d) of the
Moreover, the Commission has not received any information indicating that
the subject of this petition is pending in another international procedure
for settlement. Therefore, the Commission deems that the requirements set
out in Articles 46(1)(c) and 47(d) of the Convention have been satisfied
and the petition is admissible.
Grounds of the Petitions
Article 41(c) of the Commission’s Rules of Procedure stipulates
that the Commission shall declare inadmissible any petition that is
manifestly groundless on the basis of the statement by the petitioner
himself or the government. Article 47(b) of the Convention establishes
that any petition that “does not
state facts that tend to establish a violation of the rights guaranteed by
this Convention” shall be declared inadmissible. In the case under
consideration, the petitioners claim that their rights to judicial
guarantees and to effective judicial remedy as provided for in Articles 8
and 25(2)(c) of the Convention have been directly violated. From that fact
flows the subsidiary violation of the other rights and obligations they
mention–the rights to private property and to equal protection before
the law (Articles 21 and 24 of the Convention), and to health and
well-being and to social security, in relation to the obligation to
work and contribute to social security (Articles XI, XVI, XXXV and XXXVII
of the Declaration); the obligation of
states to respect rights and to adopt measures to give effect to those
rights (Articles 1(1) and 2 of the Convention. Having examined the
information provided by the parties, the Commission deems that the
allegations are not clearly without grounds and they could characterize
violations of the above-mentioned provisions. Therefore, the Commission
concludes that the petition is not inadmissible under Articles 47(c) and
47(d) of the Convention.
In regard to the petitions of Acevedo, Daniel; Agro,
Eduardo; Agrofolio, José Heribe; Ambrossetti, Pedro S.; Amodeo, Enrique
Domingo; Balciunas, Robert; Caride, Juan Manuel; Carmona, Antonio; Chañaha,
Angel Amadeo; Menéndez, Amilcar; Orsi, Vittorio; Otero, Angela; Pafundi,
Amancio Modesto; Piscitelli, Pascual; Rodríguez Arias, Eduardo, A.;
Solari, María Elena, and Tudor, Enrique José the Commission concludes
that they comply with the requirements set out in Articles 46 and 47 of
the Convention and therefore are admissible.
Based on the arguments of fact and of law outlined above, and,
without prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
Declare admissible the petitions of Acevedo, Daniel; Agro, Eduardo;
Agrofolio, José Heribe; Ambrossetti, Pedro S.; Amodeo, Enrique Domingo;
Balciunas, Robert; Caride Juan Manuel; Carmona, Antonio; Chañaha, Angel
Amadeo; Menéndez, Amilcar; Orsi, Vittorio; Otero, Angela; Pafundi,
Amancio Modesto; Piscitelli, Pascual; Rodríguez Arias, Eduardo, A; Solari,
María Elena; y Tudor, Enrique José in reference to alleged violations of
the rights provided for in Articles 1(1), 2, 8(1), 21, 24 and 25(2)(c) of
the Convention and of the rights enshrined in Article XI and treated
jointly in Articles XVI, XXXV, and XXXVII of the Declaration.
Notify the parties of this decision.
Continue with the analysis of the merits of the case.
Publish this decision 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, Washington, D.C., on the 19th day of January 2001. (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 petitioners cite, inter alia,
the European Court of Human Rights, Deumeland
v. Federal Republic of Germany, 29 May 1986.
The petitioners have attached a copy of Report No. 198, 23 November
1999, issued by the Chamber of Social Security (CSS) of Argentina.
Article 16 of Law 24.463 states, “The National Social Security
Administration may cite in its defense limitation of the funds to be
distributed and the resulting incapacity to cover the greater expenses
resulting from attending to the demands of the individual and later
application to analogous cases.” Article 17 states, “ Only
documentary evidence, oral and expert testimony, reports and other
evidence that the court deems necessary shall be admitted, unless the
National Social Security Administration alleges limitation of
resources in the funds to be distributed, in which case corresponding
expert testimony will be
submitted by the corps of experts and civil servants of the Office of
the Auditor General in accordance with the rules and regulations of
The petitioners have attached a copy of comments on the matters taken
up in the case made by the UN Committee on Economic, Social and
Cultural Rights. In paragraph 18, the Committee states that it
“Notes with concern the scope of the privatization of the pension
program. Of special concern is Article 16 of Law 24.463 which allows
the government to reduce pensions or to simply not pay them by
invoking economic hardship.” It recommended that the State “Assure
that its social security program guarantees workers an adequate
minimum pension, which should not be unilaterally reduced or deferred,
especially in times of economic hardship. Thus, (we) recommend (…)
that Article 16 of Law 24.463 of 31 March 1995 be revoked in order to
guarantee full payment of all pensions.” (Original in English –
Spanish translation provided by the petitioner. They also attach the Summary
record of the first part of the 36th meeting: Argentina
Article 22 states, “ Judgments against the National Social Security
Administration shall meet with compliance within a period of 90 days
of notification, until budgetary resources allocated to that end for
the fiscal year in which that last day of that period falls are
exhausted. Once such funds are exhausted, compliance with all other
awards pending payment shall be suspended. Calculation of the time
period allotted for compliance shall begin anew at the beginning of
the next fiscal year in which budgetary funds are allocated for
compliance with court awards and stop again once those funds are
exhausted. For compliance purposes, the Argentine National Social
Security Administration must absolutely respect the chronological
order of the final judgments, except when compliance is passed on to
the following fiscal year, in which case priority shall be given to
the oldest beneficiaries. Laws 23.982 and 24.130 shall apply, with
supplemental application of Law 3952.” Article 23 states, “In no
case shall a judge set a different time period for compliance or
impose pecuniary, compulsory or comminatory sanctions on the
respective bodies or competent officials, except in cases of amparo
for delay. Any measures of this kind that may be taken or adopted
shall have no legal effect. Attachment of the assets and accounts of
the National Social Security Administration shall not be possible. The
competent administrative authorities shall immediately take steps to
stop or lift any compulsory, precautionary or executory measures
ordered before the enactment of this law, including those regarding
the assets of the Social Security Administration.”
The petitioners cite the Pietranera
case of 1962 in which the Supreme Court of Argentina ruled that a
decision affecting the national budget could not be executed in the
same fiscal year in which the judgement was rendered as the budgetary
consequences could not have been foreseen when the budget had been
drawn up. But if compliance is not taken into account for the
following budget, it is due to negligence or the will not to pay, and
thus the decision is enforceable.
The petitioners cite the Inter-American Court of Human Rights, Advisory Opinion OC-9/87,
Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8
American Convention on Human Rights),
Series A, No. 9, paragraphs 20-22-24. “From Article
27(1), moreover, comes the general requirement that in any state of
emergency there be appropriate means to control the measures taken, so
that they are proportionate to need and do not exceed the strict
limits imposed by the Convention or derived from it.”
And the petitioners explained that:"the guaranties are
aimed to protect, insure and enforce the exercise of rights.
The States parties are binding to respect the human rights and
to enforce them with their respectively guaranties (Article 1(1), it
means, with the adecuate mechanisms to make them effective in any
Letter from the petitioners dated 16 October 2000.
Some of the petitioners have submitted receipts.
The petitioners have submitted press articles and Executive Decrees
that show that military personal has been paid monies owed them.
Information submitted by the State on 27 January 1997.
This reservation states: “The Government of Argentina hereby
stipulates that questions inherent to the economic policy of the
government shall not be subject to review by an international
tribunal. Also, whatever domestic courts declare to be in the public
good or of social interest shall be beyond review, as will the
courts’ determinations of just compensation.”
The State cites Article 14(bis) of the Constitution.
Inter-American Court of Human Rights has pointed out 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 July 14, 1989.
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, paragraph 46.
The Inter-American Court of Human Rights has said, “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 Parties thereto. Advisory Opinion OC-10/89 July 14, 1989.
Interpretation of the American Declaration of the Rights and Duties of Man
Within the Framework of Article 64 of the American Convention on Human
The IACHR has established that it has competence to examine violations
of the Declaration and the Convention as long as ongoing violation of
the rights protected in both instruments is verified, such as would be
the case, for example, of denial of justice that originated before the
State in question had ratified the Convention and continued after the
State’s acceptance of the Convention and its entry into effect for
that State. See IACHR Annual Report for 1987-88, Resolution 28/88,
Case 10.190, Argentina, and IACHR Annual Report for 1998, Report
38/99, Argentina, paragraph 13.
Information provided by the State in its submission of 27 January
In regard to calculating the period, the Inter-American Court of Human
Rights has applied the notion of a “overall analysis of the
procedure” according to which a determination of reasonability
should include consideration of delays at all stages of the process.
Lacayo case, 29
January 1997, paragraph 81.
See IACHR Report Nº 31/99, Case 11.763, Masacre
de Plan de Sánchez, Guatemala, 11 March 1999, paragraph 28.
There the Commission affirmed that the remedies referred to in
Article 46 are, in principle, judicial remedies and therefore it
rejected the State’s claims that the procedures carried out by the
CEH were appropriate to the rule on the exhaustion of domestic
remedies. The IACHR confirmed that said procedures did not attribute
responsibility to any individual and that its report and
recommendations did not leave any judicial effect. Also see
Inter-American Court of Human Rights, Velásquez Rodriguez Case, Preliminary Exceptions, paragraph 91; Velásquez
Rodríguez Case, Merits, paragraph 66, and the Godinez
Cruz Case, Merits, Paragraph 69.
In regard to calculating what is a reasonable period of time, the
European Commission esteemed “That the administrative and judicial
procedures, which are the subject of the petitioner’s complaint,
come under Article 6(1) of the Convention.” Allenet
de Ribemont v. France, Application No. 15175/89, 8 February 1993.
The Inter-American Court has said, “For the exception of
non-exhaustion of domestic remedies to be considered timely, it must
be brought up in the initial stages of the procedure. If it is not, it
can be presumed that the State concerned is tacitly renouncing its
use.” See Velásquez Rodríguez
Case, Preliminary Exceptions, 26 June 1987, Series C No.1,
paragraph 88; Fairén
Garbi y Solís Corrales Case, Preliminary Exceptions, 26
June 1987, Series C No. 2,
paragraph 87; Godínez
Cruz Case, Preliminary Exceptions, 26 June 1987, Series C No.
3, paragraph 90; Gangaram
Panday Case, Preliminary Exceptions, 4 December 1991, Series C
No.12, paragraph 38; Neira
Alegría et al. Case, Preliminary Exceptions, 11 December
1991, Series C No.13, paragraph 30;
Páez Case, Preliminary Exceptions, 30 January 1996, Series C
No. 24, paragraph 40; Loayza
Tamayo Case, Preliminary Exceptions, 31 January 1996, Series C
No. 25, paragraph 40.
To the contrary, the Inter-American Court has repeatedly held that
“A State that maintains non-exhaustion must point to the domestic
remedies that should be exhausted and show that they are effective.”
Velásquez Rodríguez Case, Preliminary Exceptions, 26 June 1987,
Series C No. 1, paragraph 88. The Court also says that “If a State
maintaining non-exhaustion shows the existence of domestic remedies
that should have been used, then it shall be up to the petitioners to
show that such remedies were exhausted or that the exceptions provided
for in Article 46(2) are applicable.” Velásquez
Rodríguez Case, Merits, Final Judgement, 29 July 1988, Series
C No.1, paragraph 60.
IACHR Annual Report for 1999, Cabrejos
Bernuy Case, Report Nº 75/99, Case 11.800 (Peru), paragraph 22.
Here the Commission stated, “Without prejudging the merits of the
case, the Commission must add that failure to enforce a final judgment
is an on-going violation by States that persists as an infraction of
Article 25 of the Convention, which sets forth the right to effective
IACHR Annual Report for 1999, Cabrejos
Bernuy Case, Report Nº 75/99, Case 11.800 (Peru), paragraph 22.
On the State not invoking the rule on the deadline for lodging a
petition, the Inter-American Court has pointed out: “This deadline
depends on the exhaustion of remedies (and) it is the government that
should argue non-compliance with it before the Commission. But here
again, what the Court affirmed regarding the exception to the rule on
non-exhaustion of domestic remedies is valid: generally recognized
principles of international law indicate that first of all, we are
dealing with a rule the use of which can be either tacitly or
expressly renounced by the State, which has the right to invoke it, as
previously recognized by the Court (see the Vivian
Gallardo et al. Case, 13 November 1981, No. G 101/81, Series A,
paragraph 26).” Inter-American Court of Human Rights, Neira
Alegría et al. Case, Preliminary Exceptions, 11 December 1991,
Series C No. 13, paragraph 30.
Summary record of the first part
of the 36th meeting:
Report Nº 30/00, Case 12.095, Mariela
Barreto Riofano, Peru, March
23, 2000, paragraph 24, and Report Nº 54/98, Case 11.756, Leonor La Rosa Bustamante, Peru, December 8, 1998, paragraphs 15 and
 Report Nº 33/98, Case 10.545, Clemente Ayala Torres et al., Mexico, May 5, 1998, Paragraph 43.
 Article 39(2) of IACHR Rules of Procedure establishes that “The Commission shall not refrain from taking up and examining a petition in cases provided for in paragraph 1 when: (a) the procedure followed before the other organization or agency is one limited to an examination of the general situation on human rights in the state in question and there has been no decision on the specific facts that are the subject of the petition submitted to the Commission, or is one that will not lead to an effective settlement of the violation denounced.”