The cases lodged by the following Argentine citizens were
joined by the Commission:
Vaca Narvaja, Miguel - claiming his rights as an heir
The above-named petitioners were unlawfully arrested by the
Military Junta that ruled Argentina from 1976 to 1983.
The government accused them of being subversives and held them
in custody by order of the Executive Power, though none was convicted
of any crime. All of the
arrests were made without a court order.
The periods of confinement varied from three months to seven
years. Most of the
petitioners were held under terrible conditions, in an atmosphere of
torture and summary execution that left them in constant fear for
their lives. Some
sustained permanent physical injuries; one lost a kidney as a result
of a wound inflicted with a bayonet.
Another was murdered while in prison.
A few months after President Raúl Alfonsín took office in December 1983, the petitioners--or their surviving heirs--filed suit against the Argentine State for the property and mental damages caused by virtue of their detention. All of the petitioners filed their suits within three months of the fall of the military government. In many cases, the petitioners received lower court rulings in their favor, but the Federal Chamber of Cordoba and the Supreme Court of Justice of the Nation declared that the statute of limitations for bringing legal action had expired. The petitioners argued that under Argentine law the statute of limitations could be extended in cases of "de facto problems or impediments." The limitation could be extended by as much as three months after the problem or impediment ceased to exist (Argentine Civil Code, Article 3980). They argued that the absence of an extension would render their rights illusory. Nevertheless, the Argentine Supreme Court held that accepting the petitioners' arguments would be tantamount to admitting that there had been a "parenthesis in Argentine life" and legal certainty would be seriously undermined. According to the Supreme Court, the suits filed by the petitioners should have been instituted during the military government, before expiration of the two-year statute of limitations prescribed for actions instituted to recover what has been lost as a result of unlawful acts.
The first of the cases was submitted to the Commission on
February 15, 1989, and the others followed in succession as the
Argentine Supreme Court handed down its rulings.
The petitioners argued that the rulings of the Argentine Supreme
Court that declared that the statute of limitations had expired in their
actions, violated the right to a fair trial recognized in Article XVIII
of the American Declaration of the Rights and Duties of Man and the
rights to a fair trial and to judicial protection recognized in articles
8 and 25 of the American Convention on Human Rights.
They asserted that the reasoning of the Argentine Supreme Court
was at odds with the jurisprudence established by the Inter-American
Court of Human Rights in the "Velásquez Rodríguez" case to
the effect that the States Parties have an obligation "to provide
effective judicial remedies to victims of human rights violations
(Article 25), remedies that must be substantiated
in accordance with the rules of due process of law"
(paragraph 91 of the Velásquez Rodríguez case, Preliminary
Objections). The petitioners invoked the competence of the Commission
under the American Convention and, failing that, under the American
Declaration, in accordance with the Commission's Statute.
They asked that their petition be declared admissible, that the
Commission place itself at the disposal of the parties with a view to
reaching a friendly settlement; should no friendly settlement be
reached, they asked that a report be prepared condemning the position
taken by the Argentine Supreme Court that prevented the petitioners from
obtaining fair compensation for the damages caused; they also asked that
eventually the case be submitted to the Inter-American Court of Human
Rights so that the latter might order payment of a just compensation.
On August 15, 1989, the Government replied using two basic
arguments. First, it
objected to the admissibility of the petitions on the grounds that the
American Convention did not apply ratione temporis; it argued
that the petition was inadmissible "as it concerned facts that
occurred before the American Convention entered into force for the
country" (reply, page 2). The
Government argued that the Argentine instrument of ratification was not
deposited until August 14, 1984, and that said instrument of
ratification stated that "the obligations undertaken by virtue of
the Convention shall have effects in respect of events that occur
subsequent to its ratification." Since all the unlawful acts
committed against the petitioners occurred during the military
government--and before Argentina ratified the Convention--the Convention
was, in the opinion of the Argentine Government, not applicable.
Second, the Government denied that the American Declaration was
binding upon the Member States of the OAS, insisting that even though
the Declaration had by now become customary law, it did not create
specific procedural obligations for the State; only the Argentine State
and its judges had the authority to determine whether it was reasonable
to expect the petitioners to institute an action during the military
On September 22, 1989, the petitioners submitted their
observations on the Government's reply and used the following arguments
to counter the Government's contention that the petition was
inadmissible ratione temporis:
said that the violations of the American Convention they had denounced
were not the unlawful arrests and physical injuries they sustained;
instead, they were protesting the rulings handed down by the Supreme
Court that denied the petitioners the opportunity to exercise their
rights. They further
alleged that the violation was not consummated with the arrests, but
rather with the rulings of the Supreme Court, since neither effective
legal remedies nor due process was being provided.
A court ruling that disregarded how difficult it would have been
for the petitioners to seek damages during the military government and
dismissed their claim was, according to the petitioners, in itself a
violation of articles 8 and 25 of the American Convention.
All the Supreme Court's rulings on these cases were handed down
subsequent to Argentina's ratification of the American Convention.
argued that a situation that existed before and after a treaty's
ratification--such as the legal proceeding wherein the petitioners
sought compensation-- was protected under the Convention.
maintained that the rights invoked by the petitioners were already
protected under the Declaration. The
obligation to provide an effective legal recourse
was already stipulated in Article XVIII of the Declaration;
hence, the Argentine Government could hardly allege that it was taken
"by surprise" by a new obligation being enforced
of the Convention merely changed the international mechanism for the
protection of human rights, but not the right itself.
They asserted that even supposing, for the sake of argument, that
the Commission had decided to deny its competence as the organ under the
Convention, it would still have to settle the case based on its Statute
and the American Declaration.
As for the Argentine Government's argument that the Declaration
did not allow the Commission to intervene in this case, the petitioners
pointed out that the binding nature of the Declaration, though perhaps
not clearly spelled out at the time of its adoption, was subsequently
clarified in the Charter as amended by the Protocol of Buenos Aires.
Articles 51 and 112 of the Charter (Articles 52 and 111 of the
Charter as amended by the Protocol of Cartagena de Indias) changed the
Commission's status. It
became one of the principal organs of the OAS, charged with promoting
the fulfillment and protection of the human rights recognized in the
Declaration. The Commission
recognized the binding
force of the Declaration in its Resolution Nº 23/81, Case 2141 (United
States) on the abortion issue.
There it stated that the Declaration was binding upon the United
States of America. The
Court, too, recognized the binding nature of the Declaration, stating
that "Articles 1(2)(b) and 20 of the Commission's Statute define
the competence of that body with respect to the human rights enunciated
in the Declaration, with the result that to this extent the American
Declaration is for these States a source of international obligations
related to the Charter of the Organization."
They also stated that both the American Declaration and the
American Convention authorize a right to compensation in the case of
arbitrary arrests, guaranteeing access to the courts to exercise that
right, and that the actions that they allow cannot be subject to the
statute of limitations under international law until such time as the
bearers of those rights have had an effective opportunity to exercise
OFFER FROM THE ARGENTINE GOVERNMENT
The Commission granted the parties a hearing on May 11, 1990.
There, after listening to the petitioners, the representatives of
the Argentine Government reported that the Administration of President
Carlos Menem, which had taken office after Argentina's reply had been
filed, did not necessarily disagree with the petitioners.
They pointed out that President Menem had himself been detained
for political reasons during the military government, that he was
sympathetic to the petitioners' situation and wanted to give them
adequate compensation. The
representatives of the Argentine Government presented to the Commission
a copy of Decree 798/90, dated April 26, 1990, which authorized the
establishment of an Ad hoc Commission in Argentina to draft a
bill that would provide the petitioners with the compensation they
deserved. The Commission
and the petitioners expressed their approval of the Government's
Pursuant to Article 48.f of the American Convention, the
Inter-American Commission on Human Rights made itself available to the
parties to reach a friendly settlement based on respect for human
Initially, the Argentine Government encountered difficulties in
implementing its decision to compensate the petitioners.
During the hearing held on October 3, 1990, the Government
indicated that though the Ad hoc Commission had drafted a bill
for compensation of the petitioners, Congress had not yet passed it.
Later, at the hearing of February 8, 1991, the Government stated
that it had enacted decree 70/91, dated January 10, 1991, which would
allow the petitioners to be properly compensated.
This decree, adopted for the specific purpose of settling the
petitioners' cases, authorized the Minister of the Interior to pay a
compensation, at the request of those persons who proved that they had
been detained by executive order during the military government and who
instituted legal proceedings prior to December 10, 1985, i.e., during
the first two years of democratic government.
The formula specified for the compensation was as follows: for
every month of confinement, one thirtieth the monthly salary paid to a
public servant at the highest level in the civil service.
In the case of individuals who had died during their
imprisonment, the compensation owed for five years of confinement was to
be added to the amount owed for the actual period of imprisonment.
In cases of individuals who had sustained serious injuries, the
compensation for the period of confinement was to be paid, plus 70% of
the sum received by the next-of-kin of those who died in confinement.
Subsequent decrees elaborated upon the original decree to ensure
that a petitioner who had been detained without an executive order would
also be compensated fairly, as would a petitioner whose arrest by order
of the executive branch had been upheld by the courts.
The petitioners stated that they would regard payment of the
amounts stipulated in Decree 70/91 to be just compensation for the
damages sustained. This
Executive Decree was later confirmed by National Law 24043, enacted on
December 23, 1991.
AGREEMENT ON THE FRIENDLY SETTLEMENT
Subsequently, the Commission held hearings on September 19, 1991,
January 31, 1992 and September 19, 1992, to keep abreast of the
Argentine Government's fulfillment of the commitments it undertook.
In the end, the petitioners agreed to the following compensation:
Narvaja, Miguel - 56,511 pesos (*)
Bartoli, Bernardo - 36,855
Birt, Guillermo Alberto - 71,739 pesos
Caletti, Gerardo Andrés -
Di Cola, Silvia - 58,212
Ferrero de Fierro, Irma
Carolina - 4,401 pesos
Fierro, José Enrique -
Gatica de Giulani, Marta
Ester - 28,377 pesos
Giulani, Héctor Lucio -
Olivares, Jorge Abelardo -
Padula, Rubén Héctor -
Torregiani, José Mariano -
Puerta, Guillermo Rolando -
(*) One Argentine peso equals one U.S. dollar.
The petitioners have agreed to the amounts offered by the Government.
The petitioners and the Argentine Government have asked the
Commission to close the case, since a friendly settlement was reached.
Given the foregoing, the Inter-American Commission on Human
Rights, pursuant to Article 49 of the American Convention on Human
express its appreciation to the Government of Argentina for its manifest
fidelity to the American Convention and for having paid compensation to
the petitioners and to thank the petitioners for having agreed to the
terms of Decree 70/91, supplemented by law 24043, of December 23, 1991,
as part of the friendly settlement agreed upon by the parties.
state how pleased it is with the friendly settlement agreement and to
acknowledge that it has been concluded to the complete satisfaction of
the parties and the Commission alike.