On June 5, 2000, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received from the OAS office in Buenos
Aires a petition submitted by the Commission of Relatives of Defenseless
Victims of Social Violence (COFAVI, hereinafter “the petitioner”),
describing alleged human rights violations perpetrated by the Argentine
Republic (hereinafter “the State”) against Fernando Horacio Giovanelli,
now deceased (hereinafter “the alleged victim”).
The petitioner maintains that the alleged victim was detained on
October 17, 1991, by officers of the Buenos Aires Provincial Police, and
transferred in an unmarked vehicle to the Third Police Station in Quilmes,
where he was “brutally beaten”; he was then taken to a public
thoroughfare and “thrown onto the footpath and murdered by one of the
police officers who discharged a firearm into his head.” The petitioner
further states that the police investigation was deliberately oriented
toward covering up the truth of the killing and that the ensuing criminal
trial, which has been ongoing for nine years, “is almost without
activity and is plagued with irregularities” and has failed to identify
the perpetrators of the crime.
According to the petitioner, the State has thereby violated, with
respect to the alleged victim, the following rights enshrined in the
American Convention on Human Rights (hereinafter “the Convention”): to
life (Article 4), to humane treatment (Article 5), to personal liberty and
security (Article 7), and to a fair trial and judicial protection
(Articles 8(1) and 25).
The Commission concludes that the case meets the admissibility
requirements set in Articles 46 and 47 of the Convention. Regarding the
prior exhaustion of domestic remedies, as required by Article 46(1)(a) of
the Convention, the Commission believes that the exception provided in
Article 46(2)(c)—unwarranted delay in rendering a final judgment on
those remedies—applies in this case. Consequently, and without
prejudging its merits, the Commission declares this case to be admissible
in all regards.
PROCESSING BY THE COMMISSION
The petition was delivered to the OAS office in Buenos Aires on May
18, 2000; it was then forwarded to the Commission, where its arrival was
recorded on June 5. On June 20, the petitioner was told of its arrival
and, on June 28, the case was opened, with notice served on the State and
notification thereof sent to the petitioner.
The State’s reply was received by the Commission on December 5,
2000; receipt of this was acknowledged and the petitioner notified thereof
on December 13. The State sent additional information on January 19, 2001,
which was forwarded to the petitioner on February 20.
POSITIONS OF THE PARTIES
The petitioner claims that at around 9:45 p.m. on October 17, 1991,
the alleged victim left his family residence in the district of Quilmes,
Buenos Aires province, with the intention of paying a call on a sick
uncle. While still only a few yards from his home, he was confronted by
officers of the Buenos Aires Provincial Police inside a vehicle, who
demanded that he show them his identification documents. Since he had
failed to bring his papers with him and was thus unable to produce them,
the alleged victim was arrested and transferred, in an unmarked vehicle,
to the Third Police Station in Quilmes.
At the police station the alleged victim was “brutally beaten”
to the August 14 Bridge (Quilmes district), a few meters from the police
station, [where] he was thrown onto the footpath and murdered by one of
the police officers who discharged a firearm into his head (the bullet
entering through the left earlobe). Later his body was taken to the place
known as “Villa Los Eucaliptos” […], which, while quite distant from
the police station in question, still comes under its jurisdiction.
Approximately two and a half hours after his death, his body was dumped in
front of that shanty town.
The petitioner maintains that the version of events contained in
the police report, which was used as the basis for the criminal
proceedings, is plagued with inconsistencies. According to the police
report, the alleged victim was approached and assaulted by four residents
of the Los Eucaliptos shanty town, one of whom fired on him when he put up
resistance. According to the petitioner, however, “it is impossible that
Fernando [the alleged victim] was in that area at 1:00 a.m. because […]
his plan was to visit his uncle, who lived far away from there, and under
no circumstances could he have taken that route to reach a destination
that was some 40 blocks from his home.”
The petitioner states that the autopsy conducted on October 18,
1991, in the police morgue of the La Plata cemetery describes a series of
wounds and bruises inflicted prior to death, indicating that the alleged
victim was tortured.
On December 17, 1993, the petitioner claims, a forensic report on
the alleged victim’s remains was drawn up by three physicians from the
La Plata Forensic Service; based on this report, it was concluded that the
alleged victim’s corpse was abandoned in a location other than the
murder scene. This is indicated by the absence of copious deposits of
blood in the samples taken at the place where the body was found. In other
words, claims the petitioner, “the clinical report confirms that
Fernando Horacio Giovanelli did not die in the place where his body was
found [as maintained in the police report]. The blood from his wounds
remained in the place where he was tortured, at the site where he was
fired upon, and in the vehicle in which he was transported.”
The petitioner holds that the version set forth in the police
report is also inconsistent regarding the time of day the incident
occurred, in that it does not agree with the times given in either the
autopsy or the subsequent forensic report. According to the police report,
the attack and killing took place at around 1:00 a.m. on October 18, 1991,
while the two medical reports agree that death must have taken place
between 9:30 and 10:30 p.m. the night before.
The petitioner criticizes the fact that “the police investigation
was ‘guided’ by an alleged anonymous telephone call [to the Third
Police Station in Quilmes] made by a transvestite, [and] a group of youths
from Villa Los Eucaliptos were presumed to be the perpetrators.”
The petitioner refers in detail to the testimony taken by the
police from 14-year-old Angel Leonardo D. Acevedo, an alleged witness:
31/Oct/91, at Police Station III in Quilmes, before Station Chief Héctor
Omar Amado, a witness statement was rendered by […] Angel Leonardo David
Acevedo, aged 14, who lives with his grandparents in Villa Los Eucaliptos,
who stated that on the night in question (17/Oct/91) […] at “ten to
one” on 18/Oct/91 he saw that, on the path opposite [across from where
he was spending the night], a young man came running [presumably the
alleged victim], that the transvestite Sandra spoke to the young man for
five minutes and then the young man walked on, and that later,
“Ramonchi” [José Ramón Prado, under the influence of drugs], who had
a Versa 22-caliber firearm, confronted him and said, “Be quiet or I’ll
shoot,” and, although the young man put up no resistance, “Ramonchi”
fired on him.
On November 8, 1991, the minor Acevedo gave a new witness statement […],
this time to Criminal Court No. 1 […] claiming that the statement taken
from him at Police Station III […] was obtained through torture
inflicted by the interrogating officers and that he only learned of the
incident under investigation on 29/Oct/91 from remarks made by others.
also claims [in his new statement] that the police directed him to say
certain things and that physical blows were inflicted on him. They told
him that if he did not say he had seen the incident, they would hold him
guilty and send him to prison.
the same day that Acevedo gave his statement (8/Nov/91), proceedings No.
2446 were opened before Criminal Court No. 1 in Quilmes to investigate the
possible commission of a publicly prosecutable crime.
On December 30, 1992, the minor [Acevedo] elaborated on his statement
[…] saying that a few days after Fernando [Giovanelli] was killed, he
was detained by three police officers and taken in a van to Police Station
III in Quilmes, where they began to interrogate him; the Station Chief
asked the questions and they kept him in detention overnight. To secure
his statement they hit him, placed a bag over his head (in other words,
they tortured him), and tied him to a chair.
minor’s grandmother […] also gave a statement on 8/Nov/91 […] at the
Court, about the actions of the transvestites [who allegedly witnessed the
killing]. She said that the brother of one of them […] (Peggy), also a
transvestite, was killed for giving a statement incriminating a police
officer. As a result of that killing, all the homosexuals who frequent
that area are terrified and refuse to give evidence against anyone, and
certainly not against the police.
The petitioner also reports that on October 31, 1991, the police
raided the home of the person they had accused of the murder, José Ramón
Prado, and arrested him; they kept him incommunicado for the maximum
period of 72 hours but did not inform him of the reasons for his
detention; and they arrested Cristian L. Carabajal on charges of being an
accomplice to the murder. “Almost a month later, on 29/Nov/91, the judge
was going to release Prado and Carabajal because of insufficient
evidence,” but on June 26, 1994, the presiding magistrate of Criminal
and Correctional Court No. 1 in Quilmes ordered that they both be kept in
preventive custody because he had found them “prima facie” guilty of
the crime of homicide. On December 16, 1996, the presiding magistrate of
that same court reissued the detention order against José Ramón Prado
and ordered the provisional release of Cristian L. Carabajal. “Prado was
later released on May 20, 1997, by the decision of Circuit II [of the]
Criminal and Correctional Appeals Chamber of the Quilmes Judicial
Based on the police investigations, the petitioner reports, on
October 18, 1991, criminal proceedings were begun against José Ramón
Prado and Cristian Leonardo Carabajal for the murder of Fernando Horacio
Giovanelli (case No. 2378).
The petitioner maintains that:
nine years after the first steps were taken, little has been done to cast
light on this incident; [the different judges who heard the case] merely
produced unconvincing evidence to clear up Mr. Giovanelli’s death.
Moreover, because of the scant evidence that existed, they did not study
those elements of the case that appeared to be confusing, suspicious, or
so many years, it is clear that no attempt was made to carry out a fair,
swift, objective, and transparent judicial process, as witnessed by the
courts’ lack of eagerness to discover the truth.
present, no judicial activity is taking place with respect to case No.
2378/1991, and it is plagued with irregularities.
The petitioner concludes:
police personnel attached to the Third Police Station in Quilmes, Buenos
Aires province, took part in the illegal arrest, torture, and murder of
Fernando Horacio Giovanelli on 17/Oct/91, and in the subsequent cover-up,
[and that] both the Buenos Aires Police and the authorities of the Quilmes
Judicial Department failed to perform their duty of conducting an
exhaustive investigation into the victim’s death [and that] both the
police and the judicial authorities directed the investigation of the case
in such a way as to place the blame for it on individuals whose
involvement was not proven [and that] in spite of having been seen by
seven judges, practically no progress was made with the investigation of
The petitioner therefore argues that the State has violated, with
respect to the alleged victim, the following rights protected by the
Convention: to life (Article 4), to humane treatment (Article 5), to
personal liberty and security (Article 7), and to a fair trial and
judicial protection (Articles 8(1) and 25).
State claims that there are a number of contradictions between the
petition as placed before the Commission and the case documents used at
trial in Argentina, particularly as regards the victim’s reasons for
venturing out from his home and the courts’ treatment of “the
irregularities committed in the police investigation.”
The State suggests that the procedural delays suffered by the
proceedings in case No. 2378/1991 arose from the complexity of the crime
and from the fact that at first, under Law 3.589, the investigation was
conducted by the Buenos Aires Provincial Police, some members of which had
been named by the petitioner as the perpetrators of the alleged torture
Under a recent amendment to the procedural law, the State reports,
the judicial investigation of the case will continue under the terms of
Law 3.589 until January 1, 2002, after which time the provisions of Laws
11.922 and 12.059 will apply.
State confirms that proceedings vis-à-vis the death of the alleged victim
continue “in accordance with the hypothesis of police involvement in the
incident under investigation, with related proceedings in which the
officers involved in the investigation are charged with publicly
prosecutable crimes.” The State also points out that there is as yet no
direct evidence to indicate criminal liability on the part of the police
this lack of evidence, the State argues, there are no grounds for holding
it responsible for the torture and murder of the alleged victim.
“Declaring this case admissible would undermine that standard legal
precept under which the individual making an allegation is required to
State claims that:
petitioners only became involved in the proceedings on page 320, where
they appear as individuals claiming to be injured parties. This also shows
that the petitioners have not made good use of domestic jurisdiction,
since, as is well known, an individual appearing in criminal proceedings
as an injured party does so in order to provide the evidence necessary to
support his claim, irrespective of the formalities required by the public
State holds that:
case at hand is clearly inadmissible [because domestic remedies have not
been exhausted]. Indeed, the investigation is still ongoing, with three
submissions made by the injured party in the entire proceedings, and in
which he asks for a single piece of evidence […]. Consequently, the
petitioner cannot claim that domestic jurisdiction is ineffective if he
has failed to make proper use of it.
State concludes that the Commission must declare this case inadmissible
because it fails to meet the requirement that domestic remedies be
exhausted and because it does not tend to describe violations of the
Convention, pursuant to the terms of Articles 47(a) and 47(b) thereof.
Competence Ratione Materiae, Ratione
Personae, Ratione Temporis,
The Commission is competent to hear this case, in that it describes
alleged violations of rights protected by the Convention (ratione
materiae), attributable to the State in that they took place within
its territorial jurisdiction (ratione
loci), committed against
an individual (ratione personae),
at a time when it had come into force for the State (ratione
B. Other Requirements for
Exhaustion of Domestic Remedies
Article 46(1)(a) of the Convention contains the rule requiring the
prior exhaustion of domestic remedies, a provision that the State has
expressly invoked in requesting that the case be declared inadmissible.
However, Article 46(2)(c) of the Convention provides that
enforcement of this requirement may be waived when there has been an
“unwarranted delay in rendering a final judgment under the
aforementioned remedies.” The petitioner has expressly invoked this
exception, maintaining that the criminal trial in question has made little
progress despite having been opened more than nine years ago.
The prima facie
assessment of an unwarranted delay in judicial proceedings for determining
the admissibility of a case does not demand the level of analysis required
to determine whether that same delay constitutes a violation of Articles
8(1) and 25(1). Those provisions are independent of the terms of Article
46 of the Convention and a more exhaustive analytical standard applies to
The Commission has repeatedly stated then when an admissibility
ruling involves one of the exceptions to the prior exhaustion of domestic
remedies rule contained in Article 46(2), that ruling shall not be taken
as implying any judgment on the merits of the case. The Commission, like
other international human rights protection bodies, holds that the correct
moment for ruling on the exceptions to the prior exhaustion rule is
governed by the individual circumstances of each case.
The Commission notes that more than nine years have passed since
judicial proceedings into the murder of the alleged victim began, and that
the trial has not yet been brought to a conclusion. Under Argentine law,
prosecution of this case must proceed on an ex
officio basis. In its reply to the Commission, the State provides
information that supports the waiving of the requirement of prior
exhaustion of domestic remedies; in particular, the fact that the police
officers who conducted the murder investigation have been accused of
publicly prosecutable crimes related to their alleged attempt to pervert
the course of that investigation. Consequently, the Commission believes
that the exception set forth in Article 46(2)(c) of the Convention should
apply in this case, in light of the “unwarranted delay in rendering a
final judgment” under those remedies.
Timeliness of the Petition
Since the remedies offered by domestic jurisdiction have not been
exhausted, the six-month period stipulated in Article 46(1)(b) does not
Duplication of Proceedings and Litispendence
There is no evidence to indicate that the case is substantially the
same as one previously studied by any another international body or that
it is pending in any other international settlement proceeding.
Characterization of the Alleged Facts
The State maintains that this case does not meet the terms of
Article 47(b) of the Convention, which requires that petitions “state
facts that tend to establish a violation of the rights” that it
guarantees. In the Commission’s opinion, however, the incidents
described, if proven true, could constitute violations of the following
rights protected by the Convention: to life (Article 4), to humane
treatment (Article 5), to personal liberty and security (Article 7), and
to a fair trial and judicial protection (Articles 8(1) and 25). Similarly,
they could tend to establish a violation of the obligation to respect the
rights enshrined in the Convention set forth in Article 1(1) thereof.
The Commission concludes that it is competent to deal with all the
allegations of this petition and that the case is admissible under
Articles 46 and 47 of the Convention.
on the foregoing considerations of fact and law, and without prejudging
the merits of the case,
COMMISSION ON HUMAN RIGHTS
To declare this case admissible as regards the alleged violation of
the following rights and obligations enshrined in the Convention: to life
(Article 4), to humane treatment (Article 5), to personal liberty and
security (Article 7), to a fair trial and judicial protection (Articles
8(1) and 25), and the obligation of respecting those rights (Article
To give notice of this decision to the parties.
To continue with its analysis of the merits of the complaint.
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.
and signed by the Inter-American Commission on Human
Rights on the 22nd day of February, 2001. (Signed): Claudio Grossman,
Chairman; Marta Altolaguirre, Second Vice-Chairman; Commissioners Hélio
Bicudo, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
The First-Vice Chairman of the Commission, Juan Méndez did not take
part in the discussion and voting on this case, pursuant to Article
19(2) of the Commission's Regulations.
The Convention came into force for the Argentine Republic on September
5, 1984, when the State deposited its instrument of ratification.
See: IACHR (2001), Report No. 02/01, Case 11.280, Juan Carlos Bayarrí
vs. Argentina. Pending