REPORT Nº 39/96
October 15, 1996
On November 7, 1994, Santiago Marzioni filed a petition with the
Inter-American Commission on Human Rights (hereinafter "the
Commission") against the State of Argentina for violation of his
right to equal protection of the law (Article 24) and his right to
property (Article 21), guaranteed under the American Convention on Human
Rights (hereinafter "the Convention").
In 1990, Mr. Marzioni filed
a lawsuit in the first instance labor court against his employer,
Autolatina Argentina S.A., demanding full compensation for injuries
suffered in a work related accident which left him 42.5% disabled.
Mr. Marzioni sought damages and a declaration of
unconstitutionality of the compensation limits index established under
Resolution 7/89 of the National Minimum Wage Council.
On December 30, 1992, the labor court issued a favorable
decision, but rejected the constitutional claim. The labor court applied
the compensation limits index and awarded Mr. Marzioni 520 pesos.
The petitioner appealed the compensation index constitutional
claim. The apellate labor
court upheld the labor court decision on October 5, 1993.
On October 19, 1993, the petitioner filed an extraordinary writ
before the appelate labor court, seeking review by the Argentine Supreme
Court of his constitutional claim on the limits index. The writ was
granted by the appellate court, bringing the case before the Supreme
On August 8, 1994, the Supreme Court dismissed petitioner's case
for "lack of autonomous grounds", essentially for failing to
state a claim for which the court could grant relief.
In his petition, Mr. Marzioni cites two similar work related
injury cases decided by the Supreme Court of Argentina.
The Supreme Court declared the compensation limit index unconstitutional in
those cases, resulting in higher awards. The disparity between the
monetary damages awarded the petitioner and those awarded in the other
cases form the basis of his claim before the Commission.
The difference in monetary awards is significant: Mr. Marzioni
was awarded 520 pesos for his work related claim. He contends that the
award would have been 81,932 pesos had the Argentine Supreme Court
followed its decisions in the two similar cases.
PROCEEDINGS BEFORE THE COMMISSION
The petition was forwarded to the Government of Argentina on
April 7, 1995. The Government replied on December 12, 1995, addressing
the grounds for dismissal.
The Government stated that there was no reasonable possibility of
finding a violation of the right to equal protection by a simple
comparision of different cases since the facts, decision and results are
unique to each case.
Regarding the violation of the right to property, the Government
responded that the petitioner's allegation alluded to a difference
between monetary awards, and not a deprivation of the right to use and
enjoy property guaranteed by the Convention.
The Government's reply was forwarded to the petitioner on
December 18, 1995, and his observations thereto were received on
February 21, 1996. In his response, the petitioner refers to other
Argentine cases, stating that such claims are identical to his and that
the respective rulings are contemporaneous to his case.
The petitioner also alleges that the extraordinary writ presented
in one of the cases is a literal transcription of the writ he filed. The
petitioner points out further that
the same lawyer drafted both writs. The petitioner also argues that
while the Government notes the similarity of facts in the cases, it
offers no proof to rebut his assertions.
Finally, the petitioner claims that the monetary award is a
consequence of the violation of his rights.
instant petition satisfies the formal requirements of admissibility
established in Article 46 of the Convention:
The petitioner has exhausted the domestic remedies available
under Argentine law.
The petition was lodged within the period established by Article
46 (b) of the Convention and Article 38 of the Regulations of the
Commission (the petitioner was notified of the Supreme Court decision on
August 8, 1994, and the petition was received by the Commission on
November 7, 1994).
The subject matter of the petition is not pending in another
Article 47(b) of the Convention, the Commission may find a petition
inadmissible when it does not state facts that tend to establish a
violation of the rights guaranteed by it.
Commission must analyze whether the facts tend to state a violation of
the human rights protected by Articles 21 and 24 of the Convention, as
invoked by the petitioner.
The alleged violation of the right to property
to the facts in the file, the petitioner sued his employer in 1990 after
a work accident left him with "serious health problems."
He specifically refers to a medical report which shows that
he is 42.5 percent disabled,
a consequence of the work related
accident. When the suit was filed, Law 9688 was in effect for the
regulation of work accidents. Article 8 of this law established a
formula limiting compensation awards, fixing the ceiling at "...the
sum of money equivalent to 10 years of the minimum wage in force at the
time of the accident..."
suffered three acute inflationary crises between 1988 and 1989. The
petitioner argues that the economic changes
"...not only devastated the country's economy, but
pulverized the minimum wage..." The compensation for work related
injuries similar to the one the petitioner suffered, applying the index,
resulted in amounts that are "...completely far from reality,
simply a few cents."
For this reason, the lawsuit filed in Argentina by the petitioner
challenged the compensation limit on constitutional grounds, reserving
his right to appeal before the Supreme Court of his country and
ultimately before the Commission.
March 2, 1993, the petitioner was notified of the labor court's decision
(the court of first instance). The ruling was favorable on the damages
claim, but the constitutional claim on the compensation award limits was
dismissed. He appealed before the Labor Court of Appeals, which
confirmed the decision of the lower court.
petitioner then filed an extraordinary writ, which was granted by the
Labor Court of Appeals. Consequently
his case was submitted to the Argentine Supreme Court for a final
decision. The Supreme Court dismissed the writ on August 8, 1994.
his own words, the petitioner states that his right to property is
"visibly affected", since
...the amount that ultimately is to be paid to me is nowhere near
the one that would correspond to the percentage of disability that I
effectively possess, ...and I should also be compensated in the amount
that I am effectively entitled to and not in obviously lower sums, which
result from the "blind" application of a law that is visibly
contrary to elemental principles of justice.
petitioner provided an explanation of the way the compensation limits
index functions in his case by comparing the results using the
compensation limit index to the results without applying the
compensation index limits. The difference is approximately 75,000 (in
pesos). The award, without
applying the compensation limits index, would be the following amount
First instance award:
Updated by the consumer
price index from June 1990
until April, 1 1994
apply the formula, the awarded amount (26,762.977) is multiplied by the
June 1990 inflation coefficent (3.0614 - corresponding to the month when
the accident happened). Additionally the petitioner points out that the
interest on the updated amount must also be added to arrive at the final
amount of an award.
the limit is applied to the amount awarded by the first instance court,
the amount is reduced to 520 pesos.
Following Article 8 of Law 9688 and multiplying the minimum wage
in effect at the moment the illness was discovered (2 pesos), by 13
monthly salary payments (the total yearly salary plus the aguinaldo,
or 13th salary), 26 pesos, then multiplied
by 20 is 520 pesos.
petitioner further explains that the large disparity in results reflects
the effects of the so-called "hyperinflation" process in
Argentina, when the unadjusted minimum wage of 2 pesos depreciated
daily. The compensation awards depreciated because the respective awards
were based on the "unrealistic" minimum wages.
Government states that the petitioner's allegation is, in essence, a
matter of monetary differences and not a deprivation of property.
Therefore, the Government argues that
...it may not be assumed that the Commission is a national fourth
instance before which it is possible to present and resolve differences
in the amounts awarded by the Judiciary Branch in application of the
law. In this sense, it may be recalled that it is not the function of
the Inter-American Commission of Human Rights to act as a quasi-judicial
fourth instance and review the holdings of the domestic courts of the
OAS member States (Resolution 29/88, Case No. 9260, IACHR Annual
Report 1987-1988, p. 161, par. 5.)
his reply, the petitioner points out that the Government's assertion
with respect to the monetary award differences ignores the fact that he
was affected by a severe disability causing him to retire. He denies any
intent to use the Commission as a "fourth instance", and says
that he "believes firmly" that the present case arises from
the violation of his rights, which he considers sufficiently
proven. With respect to the alleged violation of his right to
property, the petitioner affirms that "the amount (of the award) is
a consequence of the violation of my rights".
right to property is guaranteed by Article 21 of the Convention, which
Everyone has the right to the use and enjoyment of his property.
The law may subordinate such use and enjoyment to the interest of
No one shall be deprived of his property except upon payment of
just compensation, for reasons of public utility or social interest, and
in the cases and according to the forms established by law.
Usury and any other form of exploitation of man by man shall be
prohibited by law.
common legal meaning of the word property denotes "the right to
dispose of something in every legal way, to possess it, use it, and to
exclude everone else from interfering with it."
Property has also been defined as "that dominion or
indefinite right of use, control, and disposition which one may lawfully
exercise over particular things or objects."
17 of the Argentine Constitution guarantees the right to property in
Property cannot be violated, and no inhabitant of the Nation may
be deprived of it, except by virtue of a judicial sentence based on the
up, the petition refers to the judicial application of a domestic law
that regulates the amounts of compensation awards in labor accidents.
The facts show that the possibility of seeking an additional award was
precluded when the Argentine Supreme Court dismissed the petitioner's
definitions quoted above give a few of the various connotations of
property. The concept of property, however, cannot be extended to
include a potential award, or to the mere possibility of obtaining a
favorable decision in litigation that involves monetary awards. The
information he supplied
does not show that he was damaged in or dipossessed by the State of the
use, enjoyment or interest in an object or thing to which he had
acquired legal rights under domestic law.
Commission accordingly concludes that a potential award of damages
sought in the domestic courts does not constitute property within the
meaning of Article 21 of the Convention.
The alleged violation of the right to equal protection of the law
petitioner also alleges that his right to equal protection was violated
when the Argentine Supreme Court dismissed his extraordinary writ for
lack of autonomous grounds. The petitioner's claim is summarized in his own words as
The Supreme Court of Argentina, when it dismissed the
extraordinary writ filed, has violated my right to equal protection of
the law, guaranteed by the American Convention on Human Rights in
Article 24, since on recent decisions involving identical issues, it has
taken the opposite view.
petitioner refers to the case of "Vega, Humberto Atilio c/
Consorcio de propietarios del
Edificio Loma Verde y otro s/accidente. Ley 9688" handed down by
the Supreme Court on December 16, 1993. In its decision, the Supreme
Court stated that the application of Resolution 7/89 of the National
Minimum Wage Council resulted in
...the destruction of the real economic meaning of the
compensation credit, affecting property as protected in article 17 of
the Fundamental Law (the Constitution)...That in analogous cases this
Court has decided to declare unconstitutional certain norms which may
not be ostensibly incorrect at first, but become indefensible from a
constitutional point of view, because the principle of reasonableness
requires that legal precepts remain coherent with constitutional rules
during the time they are in force...
the same ruling, the Supreme Court concluded that Resolution 7/89 was
unconstitutional. Consequently, it ordered the lower court to issue a
new decision in the case of Mr. Vega.
petitioner also cites the cases of Lorenzo Aguilar and Jacinto Alfonzo,
who sued Autolatina Argentina (Marzioni's employer) for compensation for
injuries in work accidents. In the final rulings, issued on February 22,
1994 and August 18, 1994 respectively, the Argentine Supreme Court
followed the jurisprudence of "Vega."
petitioner notes that, besides "the identical subject matter",
all these rulings were contemporaneous to the decision in his case,
issued in July 1994. To further support his claim, he mentions that the
attorney who filed and litigated his case also handled the Aguilar and
Alfonzo cases, and that "therefore, the steps followed in these
three cases were the same." He concludes by saying that
...I am overcome by a profound sense of juridical insecurity,
since the Judiciary Branch has incurred in an unequal treatment of
rights, under the same conditions.
Argentina, the employer, was ordered to pay work accident indemnities in
all the cases cited, including the one filed by the petitioner. However,
as a consequence of the declaration of unconstitutionality of Resolution
7/89 in the other two cases, the courts did not apply the compensation
limits in arriving at the damages awarded, which, presumably, were much
greater, according to the formula indicated by the petitioner, than the
final amount awarded petitioner on his claim.
petitioner, however, does not provide sufficient information to
establish the alleged identity of the matters at issue in all three
cases. To the contrary, the "lack of autonomous grounds"
constitutes a substantial difference which is not explained or accounted
for by the petitioner. He restricts this part of his claim to affirming
that the only difference between his extraordinary writ and the one
filed in the "Aguilar" case is that the latter was printed by
a computer and the former was typed.
Commission, in these circumstances, cannot review and compare the
judicial rulings in the other cases in order to verify whether, in this
case, the rejection of the extraordinary writ has been arbitrary.
must be stressed, however, that if the facts in the file had shown
evidence of irregularities in the judicial proceedings, or some evident
form of discrimination, the Commission would be fully competent to
review this case in order to determine whether the petitioner's human
rights were violated.
right to equal protection of the law set forth in Article 24 of the
All persons are equal before the law. Consequently, they are
entitled, without discrimination, to equal protection of the law.
regard to the grounds on which discrimination can be claimed, the
Inter-American Court of Human Rights has stated:
It follows that there would be no discrimination in differences
of treatment of individuals by a State when the classifications selected
are based on substantial factual differences and there exists a
reasonable relationship of proportionality between these differences and
the aims of the legal rule under review.
practice of the European Commission of Human Rights is consistent in
this respect. It has stated in many decisions that not all differences
in treatment are prohibited in the exercise of the rights and freedoms
protected by the European Convention, and that equality of treatment is
violated "...only where the difference in treatment has no
objective and reasonable justification."
petitioner has not been able to supply information to prove that there
was no "objective and reasonable justification" for the
different treatment. The fact that he was not awarded the same amount as
the other plaintiffs, in itself, does not constitute discrimination. In
effect, the right to equal protection of the law cannot be asimilated to
the right to equal outcome in judicial proceedings involving the same
subject matter. If such were the case, the Argentine Supreme Court would
have to grant extraordinary writs to every plaintiff who invokes the
same rules, or who presents similar arguments by the same attorney,
without regard to the particular circumstances of each case. Such a
situation would be juridically absurd and unreasonable.
the absence of evidence that might support a claim of violation of the
right to equal protection of the law, the Commission finds that the
petitioner's claim is ill-founded with respect to Article 24 of the
The possible violation of the right to a fair trial and judicial
analysis of the Commission leads to the conclusion that the violations
alleged by the petitioner are not supported by the facts. However, since
his claim makes frequent references to the judicial proceedings in his
country that supposedly consolidated the violations, the Commission
shall examine if the facts in the file could tend to portray a violation
of Articles 8 (right to a fair trial) and 25 (right to judicial
petitioner does not contest the facts surrounding the judicial
proceedings. The procedural history of the Argentine judicial treatment
of the petitioner's claim does not evidence a due process violation.
The petitioner had access to a labor court of first instance and
received full and prompt recourse
resulting in an unfavorable decision.
The petitioner appealed to the labor appeals court of second
instance, received an unfavorable ruling which prompted the petitioner
to file an extraordinary
writ before the labor appeals court.
The writ was granted and subsequently dismissed by the Supreme
Court of Argentina. The
facts do not support the
allegation that a due process violation has occured. The right to a hearing was respected and carried out in a
reasonable period of time. The petitioner does not claim a lack of
competence, independence or impartiality of the court in any instance.
judicial protection afforded by the Convention includes the right to
fair, impartial and prompt proceedings which give rise to the
possibility, but never the guarantee, of a favorable outcome. A negative
result in a fair adjudication in itself does not constitute a violation
of the Convention. Accordingly, the Commission cannot find a violation
of either Article 8 or Article 25.
Competence of the Commission: The "fourth instance
international protection provided by the supervisory bodies of the
Convention is of a subsidiary nature. The Preamble to the Convention is
clear in this respect, when it refers to the reinforcement or
complementariety of the protection provided by the domestic law of the
rule of prior exhaustion of domestic remedies is based on the principle
that a defendant state must be allowed to provide redress on its own and
within the framework of its internal legal system. The effect of this
rule is "to assign to the jurisdiction of the Commission an
essentially subsidiary role."
nature of that role also constitutes the basis for the so-called
"fourth instance formula" applied by the Commission,
consistent with the practice of the European human rights system.
The basic premise of this formula is that the Commission cannot
review the judgments issued by the domestic courts acting within their
competence and with due judicial guarantees, unless it considers that a
possible violation of the Convention is involved.
Commission is competent to declare a petition admissible and rule on its
merits when it portrays a claim that a domestic legal decision
constitutes a disregard of the right to a fair trial, or if it appears
to violate any other right guaranteed by the Convention. However, if it
contains nothing but the allegation that the decision was wrong or
unjust in itself, the petition must be dismissed under this formula.
The Commission's task is to ensure the observance of the
obligations undertaken by the States parties to the Convention, but it
cannot serve as an appellate court to examine alleged errors of internal
law or fact that may have been committed by the domestic courts acting
within their jurisdiction. Such
examination would be in order only insofar as the mistakes entailed a
possible violation of any of the rights set forth in the Convention.
"fourth instance formula" was developed by the Commission in
the case of Clifton Wright, a Jamaican citizen who alleged that judicial
error resulted in a death
sentence against him. The domestic system had no process of appeal of
judicial error, leaving Mr. Wright without a recourse.
In that case, the Commission determined that it could not
function as a "quasi-judicial fourth instance" with the
power to review the holdings of the courts of OAS member states.
However, the Commission found the facts in the petitioner's favor and
determined that the petitioner could not have committed the
crime. The Commission thus
found that the Government of Jamaica had violated the petitioner's right
to judicial protection, a violation of his fundamental rights, because
the domesitc legal process did not allow for a correction of judicial
Commission issued Resolution No. 29/88 of September 14, 1988 in the
Wright case. The following considerations, relevant to the instant case,
5. ...It is the function of the Inter-American Commission on
Human Rights to act on petitions presented to it pursuant to Articles 44
to 51 of the American Convention as regards those States that have
become parties to the Convention.
6...The Commission's role is to investigate whether a government
action violated a right of the petitioner's which is protected by the
precedent was established in Report No. 74/90 of April 4, 1990. The
petitioner, Mr. Lopez-Aurelli, an
Argentine worker, was arrested and unlawfully imprisoned on charges of
committing politically motivated offenses in November 1975.
He claimed that the trial was conducted without minimum legal
safeguards. Further, Mr. Lopez-Aurelli claimed that the trial judges were
not impartial and independent of the military dictatorship that ruled
Argentina from 1976 to 1983.
that case, the Commission determined
that it was not competent to decide whether domestic law had been
applied correctly by the domestic courts.
the Commission found that the Argentine judiciary had failed to review
the proceedings once a democratic government had been installed and had
ratified the Convention. The
Commission concluded that such a denial of due process constituted a
violation of López Aurelli's rights under Articles 8.1 and 25.1 of the
decisions offer examples of the scope of the Commission's competence
with respect to the review of domestic decisions. The Wright and López
Aurelli cases constitute exceptions to the "fourth instance"
formula, and they may be used to illustrate the requisites a petition
must meet in order to be reviewed by the Commission.
jurisprudence of the European Commission of Human Rights is consistent
with this rule, as stated in the admissibility decision in the case of
Alvaro Baragiola v. Switzerland:
The Commission recalls that it is, in the first instance, for the
national authorities, and in particular the courts, to interpret and
apply domestic law.
The Commission recalls that what is decisive is not the
subjective apprehensions of the subject concerning the impartiality
required of the trial court, however understandable, but whether, in the
particular circumstances of the case, his fears can be held to be
European Commission held a similar view when it rejected petitions based
on alleged incorrect applications of domestic law, or improper
evaluation of facts or evidence. The European Commission has repeatedly
stated that it was not competent to review decisions of the domestic
courts unless a violation of the European Convention is involved.
relevant to the instant petition is the precedent set in the case of
Gudmundur Gudmundsson. Mr.
Gudmundsson, an Icelandic citizen, presented an application before the
European Commission claiming that a special property tax imposed by law
was a violation of his right to property and to equal protection of the
law. In that case, the European Commission found that the text of the
disputed law was consistent with the "permissible
interferences" mentioned in Article
1 of the Protocol to the European Convention, and that the alleged
discrimination was merely a differential treatment with respect to
co-operative societies and joint stock companies. Finally, it concluded
that the petition was manifestly ill-founded and restated the
"fourth instance formula" in these terms:
...whereas errors of law or fact, including errors as to the
question of the constitutionality of acts passed by a national
parliament, committed by the domestic courts, accordingly concern the
Commission during its examination of the admissibility of the
application only insofar as they appear to involve the possible
violation of any of the rights and freedoms limitatively listed in the
...an examination of the case as it has been submitted including
an examination made ex officio does not disclose any apparent
violation of the rights and freedoms set forth in the Convention.
democratic societies, where the courts function according to a system of
powers established by the Constitution and domestic legislation, it is
for those courts to review the matters
brought before them. Where it is clear that there has been a violation
of one of the rights protected by the Convention, then the Commission is
competent to review.
Commission has full authority to adjudicate irregularities of domestic
judicial proceedings which result in manifest violations of due process
or of any of the rights protected by the Convention.
example, if Mr. Marzioni presented information establishing that the
trial was not impartial because the judges were corrupt, or were biased
for racial, religious, or political reasons against him, the Commission
would be competent to examine the case under Articles 8, 21 and 25 of
respect to certain matters of procedure relevant to this case, the
Inter-American Court of Human Rights has stated:
The Convention sets out the prerequisites a petition or
communication must meet in order to be found admissible by the
Commission (Article 46); it also sets out the cases of inadmissibility
(Article 47) which may be determined once the proceeding has been
initiated (Article 48(1)(c)). Regarding the form in which the
Commission should declare inadmissibility, the Court has already pointed out that this requires an
express act, which is not required in a finding of admissibility.
practice of the Commission, consistent with the guidelines of OC-13/93,
has been to make a preliminary analysis of the petitions brought before
it in order to ascertain whether the formal and essential requisites of
the Convention and the Regulations have been met.
Inter-American Court of Human Rights has established that the finding of
inadmissibility of a petition or communication by the Commission
precludes a decision on the merits.
The Court has also stated that such "procedural
...does not in any way detract from the Commission's exercise of
other attributes which Article 41 confers upon it in extenso.
In any case, the use of the latter attributions, for example,
those contemplated in paragraphs (b), (c), and (g) of that norm, must be
by means of acts and procedures other than the procedure governing the
examination of individual petitions or denunciations based upon Articles
44 through 51 of the Convention...
Court determined in the same Advisory Opinion that a state accused of
violating the Convention may exercise its right of defense before the
Commission by arguing any of the provisions of Articles 46 and 47.
If the Commission considers the argument to be successful, it may
decide to interrupt the proceeding and close the file.
the instant case, the Government asserted in its reply to the
Commission's request for information that the requisites under Article
46(1)(a) have been met by the petitioner, which would make the case
formally admissible. However,
they have affirmed that the petition was ill-founded since the facts
failed to establish a violation of the petitioner's right to equal
protection of the law or his right to property.
may be pointed out that European Commission has followed the practice of
declaring petitions "inadmissible as being manifestly ill-founded
only when an examination of the file does not disclose a prima facie
violation" of the European human rights standards.
practice has been explained in the following terms:
...However, when the Commission declares an application to be
manifestly ill-founded, in actual fact it pronounces on the merits, on
the ground of a prima facie opinion on the alleged facts and the
legal grounds put forward. On
the other hand, the drafters of the Convention have indeeed intended to
entrust the Commission with the task of acting as a screen for the great
number of applications to be expected.
The competence of the Commission to exclude manifestly
ill-founded applications from the further procedure would seem to fit in
with this aim of procedural economy.
respect to the instant case, the violations alleged by the petitioner
have been examined in light of the text of the Convention and other
international human rights standards, as well as the practice followed
and established by the Commission, the Inter-American Court, and the
bodies of the European human rights system. The petitioner's claims were also scrutinized under Articles
8 and 25, to verify the possibility of a due process violation.
a review of the instant petition and a subsequent decision on the merits
of the case by the Commission would effectively require it to act as a
quasi-judicial fourth instance, or appellate court, with respect to the
final decision handed down by the Argentine judiciary.
The Commission lacks the competence required to carry out such a
proceeding, as has been stated throughout this report.
Commission concludes that this case meets the requisites for formal
admissibility under Article 46 of the Convention.
an examination of the available information also leads the Commission to
conclude that the petition does not disclose any apparent violation of
the right to property (Article 21) or the right to equal protection of
the law (article 24), invoked by the petitioner.
The same can be said in respect of the right to a fair trial
(Article 8) and judicial protection (Article 25).
the foregoing considerations, the Commission finds the case inadmissible
under Article 47(b) of the Convention, and decides to immediately
publish this report, and to include it in its Annual Report to the
General Assembly of the OAS.
This resolution regulates the indemnity limits provided for in Law
9860. The National Minimum Wage Council (Consejo Nacional del
Salario Mínimo, Vital y Móvil) is an administrative body under the
Executive Branch of the Argentine Government.
 Under Argentine procedural law, the recurso extraordinario
(extraordinary writ) may be filed before a provincial appellate
court to seek Supreme Court review of constitutional or federal
matters (Article 14 of Law 48). If the appellate court does not
grant the writ, there is another recourse, the recurso de queja
por denegación de recurso extraordinario. This petition is
filed directly before the Supreme Court (Article 285 of the National
Code of Civil and Commercial Procedure).
4 The “falta de fundamentación autónoma”
(lack of autonomous grounds) is provided for in Article 15 of Law
48. The law requires
that the grounds for relief be clearly perceived from the case, and
be directly related to the constitutional or federal issue invoked.
The Supreme Court can review decisions under the
extraordinary writ only if this prerequisite is met.
Under Argentine law, the
extraordinary writ allows access to the Court after a previous
instance has been exhausted. The extraordinary nature of this writ
arises from the fact that it is an exceptional recourse, restricted
to federal matters, which is utilized as a means to have the Court
nullify certain matters decided in a previous instance. The doctrine
of that country considers that the exceptional writ
...does not operate as
an instance added to those which correspond to each trial, but as a
"new" instance, which is limited and partial
(extraordinary), restricted to the federal matters covered in the
(Tratado Elemental de
Derecho Constitucional Argentino, Tomo II: El Derecho Constitucional
del Poder". Germán J. Bidart Campos, Editora EDIAR 1992, p.
455, par. 3).
...whereas theretofore it (the Commission) cannot take
cognizance, in examining the admissibility of an Application, of
alleged errors of fact or of law committed by the domestic courts of
such States save insofar as such errors would appear to have
resulted in violation of the rights and freedoms specifically set
forth in the Convention...
Application No. 458/59,
Judgment of March 29 1960, Yearbook of the European Convention on
Human Rights, Vol. 3, 1960, p. 236.
The Commission therefore
finds that the regional Court based its judgment on the assessment
of the evidence it had before it and drew its conclusions therefore.
Whether these conclusions involved an error of fact or law is an
issue which the Commission cannot determine, as it is not competent
to deal with an application alleging that errors of law or fact have
been committed by domestic courts except where it considers that
such errors might have involved a possible violation of any of the
rights and freedoms set out in the Convention...
23953/94, September 1995, Decisions and Reports, European Commission
of Human Rights, 82-A, p. 254.
Insofar as the
applicants complain of errors of fact and law committed by the
Brussels Court of Appeal, the Commission recalls that, in accordance
with Article 19 of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties in the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed
by domestic courts...
10785/84, July 1986, European Commission of Human Rights, D.R., 48,
Inter-American Court of Human Rights, Advisory Opinion OC-13/93 of
July 16, 1993. Certain Attributes of the Inter-American Commission
on Human Rights (Articles 41, 42, 46, 47, 50 and 51 of the American
Convention on Human Rights). Requested by the Governments of the
Republic of Argentina and the Oriental Republic of Uruguay. page 11,