On August 5, 1997, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition from attorneys
Diego Lavado and Carlos Varela representing Mario Gómez Yardez
(hereinafter jointly referred to as “the petitioners”), alleging
violations of the human rights of Mario Gómez Yardez (hereinafter “the
alleged victim”) within the jurisdiction of the Argentine Republic
(hereinafter “the State”).
Mendoza Province police detained the alleged victim on July 27,
1990, and allegedly tortured him for 10 days. Criminal proceedings were
instituted against a number of police officers as a result.
On August 26, 1995, the judge of the 2nd Lower Court of
the First Judicial District dismissed the case against eleven police
officers indicted for failure to report torture, on the grounds that the
statute of limitations for criminal liability had expired.
The petitioners filed and exhausted all remedies within the
State’s jurisdiction to challenge that ruling, but did not get it
reversed. The other indicted police officers were acquitted in a ruling
that the Fourth Criminal Appeals Court of the First Judicial District
delivered on September 21, 1998.
The petitioners expressly contend that the following rights
protected by the American Convention on Human Rights (hereinafter “the
Convention”) were violated in respect of the alleged victim: and the right
to a fair trial and to judicial protection, articles 8(1) and 25,
respectively; the right to equal protection of the law, Article 24. They
assert that the State failed to honor its obligation to diligently
investigate the crime of torture alleged.
The State argues that the case is inadmissible on the grounds that
local remedies have not been exhausted.
Without prejudging the merits, the Commission finds that the
instant case is admissible in respect of the violation of the rights to
due process and to judicial protection, articles 8(1) and 25 of the
Convention, respectively; it further finds that the case is inadmissible
in respect of the allegations of the supposed violation of the right to
equal protection of the law (Article 24).
The Commission will defer any interpretation and application of the
Convention’s provisions relative to the rights to humane treatment and
personal liberty (articles 5 and 7, respectively) until it examines the
merits of the case.
PROCEEDINGS BEFORE THE
The Commission received the petition by fax on August 5, 1997. The petition was received a second time by mail on August 14.
On August 22, the State was notified that the case had been opened. After
two extensions, the State sent its reply to the Commission on March 3,
1998. Its receipt was
acknowledged and a copy sent to the petitioner on March 18, 1998.
On September 18, 2000, attorneys Diego Lavado and Carlos Varela
sent the Commission an e-mail message reporting the following: (a) the
death of the alleged victim; (b) their willingness to continue to act as
co-petitioners in the case, and (c) accreditation of Ms. Gloria Alvarez,
companion of the alleged victim and mother of his child, as substitute
The petitioners’ position
On issues of fact
On July 27, 1990, Mendoza province police detained the alleged
victim and search his home as part of an investigation into the crimes of
aggravated robbery, aggravated rape and attempted murder. Both the
detention and the search were purportedly unlawful, since there was
allegedly no court order authorizing them.
The alleged victim was initially detained by the highway patrol and
then taken by the investigations department of the provincial police department.
He was then to the Eighth Examining Court, which only then took
jurisdiction over his arrest. Finally, he was taken to Lavalle Police
Headquarters 17. While in
police custody, he was allegedly “brutally tortured for 10 days.”
The opinion of the Third Examining Attorney’s Office of the First
Judicial District, dated April 16, 1996, states that the following were
the acts of torture that the alleged victim endured: mock execution,
kicking, “submarining”, and electric shock on various parts of the
body. It adds that “Dr.
ARMANDO ESPONDA examined the victim’s condition and asked that he be
given medication and analgesics, which were never supplied.”
“When [the alleged victim] appeared before the judge again, he
was found to have lesions of varying degree but serious enough for him to
be hospitalized in the Hospital Lagomaggiore.
There, a biopsy was done of the scrotum area to ascertain whether
electric shock had been used. The
biopsy was then ‘lost’ in several government offices; the report and
guard-duty log from the Lavalle Police Station would eventually turn up
missing as well.”
The alleged victim filed a complaint of torture on September 6,
1990, a few weeks after the events occurred.
The Eighth Examining Court instituted criminal proceedings against
Deputy Police Chief Enrique Funes on charges of unlawful duress. Later, on
December 21, 1992, the judge changed the charge to that of torture and
added the names of nine police officers to the list of defendants. The
defense attorneys representing the police officers filed a motion for
dismissal with the Fourth Criminal Appeals Court.
The latter nullified the court order altering the charge to that of
torture and adding other police officers to the list of defendants in the
case. It also ordered that
the case be referred back to the First Examining Court of the First
Judicial District. When the judge handling the case disqualified herself,
the case was passed to the Second Examining Court.
On November 7, 1994, the Second Examining Court handed down an
indictment against nineteen police officers.
The charges were as follows: authorship of the crime of torture;
primary and secondary participants in the commission of torture; unlawful
duress or failure to report torture.
On August 26, 1995, the Second Examining Court dismissed the case
against the eleven defendants charged with the alleged crime of failure to
report torture, on the grounds that the statute of limitations for
criminal action had expired. On
September 11, 1995, the petitioners filed a motion for dismissal for
failure to establish sufficient grounds.
On September 21, 1995, the judge of the Second Examining Court
denied the motion. The
petitioners filed an appeal with the Fourth Criminal Appeals Court, which
denied the appeal on November 23, 1995.
The petitioners filed an extraordinary appeal with the Supreme
Court of Mendoza Province, which was denied on February 5, 1997.
Citing “lack of evidence,” on September 21, 1998, the Fourth
Criminal Appeals Court handed down its ruling of acquittal in the case
against the alleged authors of torture.
In its pleading, the Office of the States Attorney for the
Appellate Court requested the defendants’ acquittal, thereby
contradicting what the State’s Attorney with the Third Examining
Attorney’s Office had stated in its opinion of April 16, 1996.
The criminal case lasted approximately eight years and one month
from the date on which the alleged victim filed a complaint with the
competent authorities to the effect that he had been tortured.
In stating the grounds for its acquittal, the Fourth Criminal
Appeals Court stated the following:
The alleged victim was held in the Provincial Penitentiary for 13
months before the First Examining Magistrate ordered that the case
alleging his involvement in the criminal acts with which he had been
charged be dismissed for lack of evidence.
On issues of law
The petitioners expressly contend that the following rights
protected by the Convention were violated to the alleged victim’s
detriment: the right to due process and the right to judicial protection,
articles 8(1) and 25, respectively, and the right to equal protection of
the law, Article 24. They
also make implicit reference to other facts that could constitute
violations of other rights protected by the Convention.
They contend that:
Also supplied to the Commission was a note published in a Mendoza
Province newspaper, dated September 19, 1998, which states the following
concerning the biopsy material taken from the alleged victim’s scrotum:
“That biopsy might have been the only irrefutable proof of torture and
the courts are wholly responsible for its loss.”
The petitioners also point out that the provisions of the
Convention that the State violated are as follows: the obligation to
respect human rights (Article 1); the judicial guarantee of appearance
before a court within a reasonable time (Article 8(1)); the right to equal
protection of the law (Article 24); and the right to judicial protection
The State’s position
The State spelled out its position on the case only once, in a
communication dated February 24, 1998.
Since then events have transpired that have superceded aspects of
that reply. For example, the
State argues that case Nº 4250, under cover titled “State’s Attorney
v. Sánchez et al for torture”
is still underway before the Fourth Criminal Appeals Court of the First
Judicial District of Mendoza Province.
Subsequent to that reply, the criminal trial ended on September 21,
1998, with an acquittal.
It argues that the case is inadmissible and adds:
“if the Commission persists in its consideration of the
complaint, the Government reserves the right to examine each and every
question of fact and of law set forth in the petitioners’ brief.”
The State rebuts the petitioners’ arguments to the Commission by
asserting that “not all the defendants were acquitted; only those who
failed to report the facts […] [and that] the case against those charged
with the crime of torture […], as authors, primary or secondary
participants, and with unlawful duress, is still in progress.”
The State added that because a criminal case is still in progress
in the domestic courts, the case is inadmissible under Article 46(1)(a) of
Competence of the Commission ratione materiae, ratione personae, ratione temporis, and
The Commission is competent to examine the case.
The facts alleged by the petitioners concern a possible violation
of rights protected under the Convention, to the detriment of natural
persons, by reason of actions attributable to Argentina that allegedly
occurred within its territory after the Convention took effect for that
Other requirements for admissibility of the case
Exhaustion of domestic remedies
The petition refers to a number of alleged violations of rights
protected by the Convention that, although arising out of the same
situation, must be examined individually to ascertain whether the other
admissibility requirements have been met.
As for the alleged violation of the right to effective judicial
recourse because of the acquittal of the eleven defendants charged with
the alleged crime of failure to report torture, the petitioners contend
that domestic remedies had been exhausted upon notification of the
February 5, 1997 ruling of the Supreme Court of Mendoza Province, which
denied the extraordinary appeal that the petitioners had filed with that
court. The State has not
denied that in this specific aspect of the case, domestic remedies were
exhausted. Consequently, on
this point, the requirement stipulated in Article 46(1)(a) of the
Convention has been met.
The State’s argument regarding the other supposed violations of
rights was that domestic remedies had not been exhausted since the
criminal trial for torture was still in progress.
However, since the date of the State’s reply, those proceedings
have concluded (a verdict of acquittal handed down by the Fourth Criminal
Appeals Court of the First Judicial District of Mendoza, dated September
The petitioners argue that they did not appeal the verdict or file
an extraordinary appeal “[because] the powers of a civil participant in
a criminal trial in [the Province of] Mendoza are very limited.” Since
the proper appeal for purposes of the present analysis is a criminal
appeal, the applicable provision is Article 6 of the Mendoza Provincial
Code of Criminal Procedure, which stipulates the following: “Only the
State’s Attorney General Office may bring public actions in criminal
cases.” This means that
only the State’s Attorney General Office has the procedural authority to
appeal a ruling. The
Commission therefore finds that the petitioners did exhaust the juridical
remedy available to them in the case of the other alleged human rights
Deadline for filing a petition
Although the date of notification of the ruling handed down by the
Supreme Court of Mendoza Province does not appear in the Commission’s
case file, it is dated February 5, 1997.
Inasmuch as the petition was received by fax on August 5, 1997, the
time requirement stipulated in Article 46(1)(b) of the Convention has been
Duplication of proceedings and litispendencia
There is no evidence that the subject of the petition is pending in
another international proceeding for settlement or that it is
substantially the same as one previously examined by the Commission.
Therefore, the requirements set forth in articles 46(1)(c) and
47(d) of the Convention have been met.
of the facts alleged
The Commission considers that if the facts the petitioners allege
prove to be true, they could tend to establish violations of rights
protected under the Convention, except for the allegations concerning the
supposed violation of Article 24 of the Convention.
Consequently, without prejudging the merits of the case, the
Commission considers that the requirements established in articles 47(b)
and (c) of the Convention have been met.
The petitioners allege that in the instant case, the right to equal
protection of the law, protected under Article 24 of the Convention, was
also violated. The Commission
believes that the information the petitioners supplied does show the
presence of the elements necessary to tend to establish a violation of the
provision of Article 24. Concerning
the most relevant issues, unlawful discrimination assumes the presence of
an unreasonable distinction between members of the same category of
persons. An additional
ingredient is the lack of equal treatment under positive law or in the
application thereof. For the
petitioners’ allegation on this point to be substantiated, it would have
to be shown that unlawful discrimination occurred within the same category
of persons and following from the text of the law or its application.
No case for discrimination can be made in the instant case because
the alleged acts of torture are so utterly unlawful.
Since the petitioners have not supplied information to support this
particular allegation, the Commission considers that it does not
characterize a violation of the right to equal treatment of the law that
Article 24 of the Convention upholds.
Consequently, this allegation is manifestly groundless, under the
terms stipulated in Article 47(c) of the Convention.
In summary, the Commission finds that the instant case is
admissible as regards the alleged violation of the rights to due process
and judicial protection (articles 8(1) and 25 of the Convention,
respectively). It also finds
that it is inadmissible as regards the allegations of a violation of the
right to equal treatment of the law (Article 24). This determination is
made without prejudging the merits of the case.
In its decision on the merits, the Commission will also consider
the pertinence of interpreting and applying the provisions of the
Convention relative to the rights to humane treatment and personal freedom
(articles 5 and 7, respectively).
Pursuant to articles 46 and 47 of the Convention, the Commission
concludes that it is competent to consider the present case and that it is
admissible within the terms indicated below.
Based on the foregoing arguments of fact and of law, and without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible insofar as it pertains to
the supposed violation of the rights to due process and to judicial
protection (articles 8(1) and 25 of the Convention) and inadmissible
insofar as it pertains to the allegation of a violation of the right to
equal protection of the law (Article 24 of the Convention), and to defer
possible interpretation and application of the Convention’s provisions
on the rights to humane treatment and personal freedom (articles 5 and 7,
respectively) until the merits are examined.
To notify the parties of this decision.
To continue with the analysis of the merits of the case.
To publish this decision and include it in its annual report to the
OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights in the city of Washington, D.C., on the sixth day of October of the
year 2000. (Signed): Hélio
Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado
The Second Vice Chairman of the Commission, Juan Méndez, an Argentine
national, did not participate in the discussion of and vote on this
report, pursuant to Article 19(2)(a) of the Commission’s Regulations.
Argentina deposited its instrument of ratification of the Convention
with the General Secretariat of the Organization on September 5, 1984.