REPORT Nº 31/97
PAULO CHRISTIAN GUARDATTI
October 14, 1997
October 20, 1993, the Inter-American Commission on Human Rights (hereinafter
"the Commission") received a claim from Ms. Hilda Gladys Lavizzari
against the Republic of Argentina (hereinafter "the State" or
"the Argentine State"). Ms.
Lavizzari is the mother of Paulo Christian Guardatti, who--according to
eyewitnesses--was handcuffed and taken away by a police officer in the Province
of Mendoza on May 23, 1992, following an altercation which had taken place
between the two. To the present day, his whereabouts are not known, despite
the efforts pursued by the mother through legal channels. Violation of the following rights protected by American
Convention on Human Rights (hereinafter "the American Convention") is
claimed: the right to life (Article
4); the right to physical integrity (Article
5); the right to personal liberty (Article 7); and the right to a fair trial
in the morning of May 23, 1992, Paulo Christian Guardatti was at a dance in the
Estanzuela area of Mendoza Province, accompanied by a group of friends.
He had an argument there with a police officer in uniform, whom he saw
later on dressed in sports attire. At
that time--4:30 the next morning--a second incident took place.
The policeman fired some shots into the air with his revolver, which
caused Guardatti's companions to run away.
But Guardatti did not move from the spot, and he was immediately
approached by the police officer, who took him in handcuffs to a police station
three blocks away. A number of witnesses were present, and they provided a
description of the policeman.
Lavizzari was informed of the incident the next day and she went to the police
station at La Estanzuela, where she was told that Paulo Christian Guardatti was
not being held there. In view of
the negative response at the Commissariat in charge of that station, Guardatti's
mother reported the disappearance of her son to the Second District Court at
Mendoza. After visiting the
hospitals and the morgue without finding him, she filed a writ of habeas
corpus with that court. The
writ was rejected when a negative response was received from the security forces
in regard to Guardatti's detention.
case acquired public notoriety with the intervention of the mass media and
agencies for the defense of human rights, which spurred the investigation and
led to the detention of four police officers accused of unlawful deprivation of
liberty. The evidence assembled in the file states that the conduct of
the captor was befitting to a police officer; that the person who arrested
Guardatti was one of the policemen assigned to keep order at the dance, a man
named Godoy; and that Godoy had been in an argument with Guardatti.
At the home of Walter Rubén Godoy Pérez, who had been on guard duty at
the Estanzuela station on the night of the events, sporting garments identical
to those described by the witnesses were found.
In addition, members of the staff of a local hospital stated that a
cadaver labeled "N.N." had been delivered to the morgue that night,
and the description and clothing concurred those of Guardatti; that the body had
been removed by the police in the early hours of the following day; and that the
respective registry file was missing.
seven months of investigation and an abundance of evidence, the conduct of the
accused parties was classified as unlawful deprivation of liberty and homicide
in "concurso real."
The charge was appealed by the prosecutor and the defendants, and the
Fifth Criminal Court decided to declare the indictment null and void and ordered
that the accused parties be released. As
a result, none of the incriminating evidence that had been presented was
allowed; and the month of November 1993 was set as the deadline for presenting
new evidence. If this were not
forthcoming, the four defendants would be dismissed.
PROCESSING BY THE COMMISSION
pertinent portions of the claim submitted by Ms. Lavizzari, who was represented
by lawyers Carlos Varela Alvarez and Diego Lavado, were transmitted to the State
of Argentina on November 30, 1993, along with a request that information
regarding that document be provided within a period of 90 days.
response from the State, received on July 15, 1994, contained a summary of the
proceeding conducted in Mendoza. It
also mentions the administrative measures conducted in the province, such as
replacement of the heads of the Investigation Division of the local police force
and the instructions requesting court records from various officials. The same note reports that Walter Godoy was tried and
arrested on November 26, 1993; but that on March 16, 1994, the Fifth Criminal
Court ordered the dismissal of the police officer, together with that of all the
other persons charged in the case. The
State's note closes with the statement that further action was being conducted
in the case "in order to discover the whereabouts of Paulo Christian
State points out that the events had taken place in a provincial jurisdiction,
"which is conducive to action on the part of the provincial authorities,
who cannot be dictated to by the National Government."
Consequently, the State reserves its opinion on the merits of the claim,
and asks that the Commission not reach a decision until all of the legal
remedies in process have been exhausted.
claimants' observations concerning that information were received on October 11,
1994. They include the remark that the claim saying that the case
was still in process is inaccurate, since action thereon had come to a halt.
The courts have indeed acknowledged the responsibility of the Province of
Mendoza in regard to the disappearance of Paulo Christian Guardatti.
But a final resolution is on record which states that sufficient evidence
had not been presented to identify the perpetrators of the crime.
State's reply to the claimants' remarks was received on November 16, 1994.
The letter again acknowledges the importance of the case, and reports
that it has sent formal notice to the Government of Mendoza Province, thereby
complying with Article 28 of the American Convention.
11. A note
was received from the claimants on December 12, 1994, in which they designate
the Center for Justice and International Law (CEJIL) as co-petitioners in the
Guardatti case, and in Case 11.009, which dealt with the disappearance of Adolfo
Garrido and Raul Baigorria in the Province of Mendoza.
This had taken place in 1990, and was also being addressed by the
February 8, 1995 a further missive was received from the claimants in which they
repeat their statements as to the paralysis of judicial proceedings.
It also disputes the State's statement regarding the exceptional nature
of the disappearances when referring to the cases of Garrido and Baigorria, and
that of Andrés Nuñez (who had disappeared in September of 1990) and Miguel Bru
(who had disappeared in 1993). The
letter included various pieces of evidence and the statement that the State's
arguments "are false, imprecise and clearly intended as a delaying
13. In its
reply dated March 20, 1994, the State explained that although the Guardatti case
was not the sole instance of forced disappearance in Argentina, at the same time
it represented an exception, inasmuch as no policy was in effect that called for
the commission of this type of offense. The
State again expressed that renewed efforts were being made to convince the
Judicial Powers of Mendoza Province to pursue the investigation.
14. A note
from the petitioners was received on May 25, 1995, once again citing the lack of
investigation--specifically, the fact that no police commission existed or had
been appointed to determine the truth in this case.
September 7, 1995, in the course of its 90th regular meeting, the Commission
held a hearing on the present case, with the petitioners and the State taking
part. At that time, the preliminary basis for a friendly settlement were set.
December 6, 1995, a deed of agreement was signed by the petitioners and the
Undersecretariat of Justice of the Mendoza Governor's Office, in which a
deadline of January 31, 1996 was established for setting up an "ad
hoc" investigation committee, that was to issue a report within ninety days
of that date.
January 24, 1996, the President of the Argentine Republic issued a decree
appointing Ambassador Zelmira Mireya Emilse Regazzoli as his agent for
negotiating a friendly settlement of Case 11.217 and of Case 11.009 (Garrido and
Baigorria). The latter case was
being handled by the Inter-American Court of Human Rights in response to the
request presented by the Commission on May 29, 1995.
The same decree invited the Government of Mendoza Province to take part
in the negotiations.
18. A draft
of the agreement was drawn up on December 26, 1995 as a basis for the friendly
settlement, and on January 29, 1996 the parties sent a request to the
Commission, asking that the treatment of both of the cases cited above be
suspended so that the negotiations could be continued.
19. After a
number of meetings held in Argentina, on May 31, 1996 the parties signed a
common agreement covering both cases--11.217 and 11.009.
It addresses the two major factors:
indemnification and investigation. The
contents of that agreement are summarized in the following paragraphs.
Indemnification: An Arbitral Court is established to determine the
amount of compensation. Its members
are to be appointed by consensus from among those of the Advisory Committee of
the Magistrates Council on Civil and Commercial Matters in the Province of
Mendoza. Its decision must be handed down by June 28, 1996, in
accordance with "current international standards." The verdict is to be submitted to the intervening
international agencies for official approval, and the parties may present
objections in the event that a charge of arbitrariness is found.
Investigation: The ad hoc Investigation Committee consists of
five members, appointed by consensus. The
objective of the ad hoc Committee is to verify the facts in both cases, and to
issue an opinion thereon which will suggest the measures to be taken.
Compliance with the Agreement
Verdict of the Arbitrator
verdict of the Arbitration Tribunal was issued on June 25, 1996.
It includes an analysis of the applicable legal system, with the
conclusion that it should be guided by the jurisprudence of the Inter-American
Court of Human Rights; the principles of compared legislation; and Argentine
positive law. The guidelines for
the determination of damages took into account the difficulty of the case, and
it was determined that the material injuries suffered would include
consequential damage, loss of income and mental trauma.
total amount of indemnification awarded to Ms. Hilda Gladys Lavizzari is
US$136,000, distributed as follows:
Loss of Income
damage was set in common for the two cases (Guardatti and Garrido and Baigorria). Vouchers covering their expenditures come to a total of
US$16,885.27. The resulting amount
is earmarked to cover outlays for national and international fares, notary
expenses, restaurants and other items.
23. As to
the consequential damage, the court of arbitration considered it an established
fact that Guardatti's mother was in poor health and had no other children who
would be able to help her. Another
factor taken into account was that Guardatti did not have a fixed job, and the
work he performed in the construction area did not permit an exact determination
of an average regular income. A
further consideration was his lack of training, since he had completed only six
years of primary school. This
raised doubts as to whether there might have been any possible improvement in
his future economic status.
determine the moral damage, the court took into account the circumstances of the
disappearance and the serious pain and suffering caused, together with the
impossibility of honoring the memory of her son, who had lived with her.
25. The fees
of Carlos Varela Alvarez and Diego Lavado, who were Ms. Lavizzari's attorneys,
were set at US$ 16,500 for each professional.
That amount was arrived at by calculating 15% of US$ 220,000, the total
indemnity awarded to the families of the three men who had disappeared.
decision of the arbitration tribunal was rejected by Varela and Lavado in a
document submitted to the court on July 2, 1996, alleging "manifest and
clear" arbitrariness. They
found that the court had violated the norms established for resolving cases,
observance of which was compulsory. Varela
and Lavado point to the serious nature of the violations, and consider their own
interpretation to have been the correct one in light of the jurisprudence of the
inter-American system of human rights.
lawyers also believe that the decision overlooked the principle of equity,
whereby the amount paid to the families of persons who had disappeared during
the military dictatorship from 1976 to 1983 should have been used as a
parameter. That sum amounted to
approximately US$ 230,000 per person in today's currency.
Applying that same principle, the lawyers pointed to recent cases of
unlawful acts committed by the Mendoza police, as a result of which the
provincial government had been obliged to pay US$ 150,000 to one victim and US$
120,000 to the other.
and Lavado end the aforementioned note with a statement that "acceptance by
this party of the miserly sums established by the arbiters would create a
serious precedent in favor of a repressive practice which most of us who are
Argentine citizens reject." Finally,
it should be noted that neither CEJIL (which was the co-petitioner in both
cases) nor the Argentine State has expressed any objection to the arbitration
Report of the Ad Hoc Committee
August 12, 1996, the Ad Hoc Investigation Committee presented its report to the
Supreme Court of Justice in Mendoza and to the Executive Secretary of the
Inter-American Commission on Human Rights.
The third section of the report addresses the Guardatti case.
It examines the circumstances surrounding his detention along with the
judicial proceedings of first and second levels of jurisdiction, which
culminated in the dismissal of the accused on April 18, 1994.
30. As to
the dismissal, the Ad Hoc Committee finds that the Fifth Court had sufficient
evidence to try police officers Walter Rubén Godoy, Oscar Ramón Luffi, Walter
Rolando Páez and José Antonio Aracena. That
position was arrived at by questioning each of the arguments adduced by members
of the Court. At the same time, the
Ad Hoc Committee cites the fear that affected the witnesses; the conditions
under which testimony was given; the evaluation criteria applied by the
examiners; and the contradictions apparent in the statements given by the
report of the Ad Hoc Committee ends with the following conclusions:
Province of Mendoza is responsible for the forced disappearance of Paulo
Christian Guardatti, who on May 24, 1992 was unlawfully deprived of his freedom
by police officers Walter Rubén Godoy, Oscar Ramón Luffi, Walter Rolando Páez
and José Antonio Aracena. To this
day, the victim's whereabouts are not known.
Province of Mendoza has violated the following rights recognized in the American
Convention on Human Rights: the
right to life (Article 4); to physical integrity (Article 5); and personal
liberty (Article 7), all of these in connection with Article 1.1, to the
detriment of Guardatti.
Province of Mendoza has also violated the right of Guardatti's family to be
heard by a judge or a competent tribunal with due guarantees and within a
reasonable time. The failure to discover Guardatti's whereabouts and final
fate more than four years after his disappearance was the result of serious
flaws in the legal investigation. Those
flaws may be summarized as follows: the discretional and arbitrary autonomy
assumed by the police in the course of the investigation; the assignment of a
very complex case to a magistrate without relieving that person of the other
duties of the court; and the
erroneous juridical assessment of the members of the Fifth Criminal Court, who
dismissed the persons charged and made it impossible to continue the
investigation carried out by the Ad Hoc Committee has led to a number of
specific recommendations. Those
which concern Paulo Christian Guardatti are summarized below:
disappearance of persons: Punishable
by a special federal law that covers the different levels of criminal acts and
the types of participation which are involved in forced disappearance, the
jurisdictional factors, the inapplicability of the statute of limitations, and
judicial cases: Greater volumes
of human and material resources should be assigned and the judges who are
competent to hear this type of case should be relieved from their other
responsibilities in order to ensure the efficiency of the investigation.
of conduct: The "Code of
Conduct for Officials Responsible for Ensuring Compliance with the Law"
that was approved by the United Nations General Assembly in its Resolution
34/169 of December 17, 1979 should be put into effect to eradicate the
corporative tendencies of the police force, which result in the impunity of its
General's Office: The norms
governing the performance of criminal inspectors should be reformed so as to
secure their active and effective participation in the task of judicial
investigation. This should be done
as part of a sweeping change throughout the administration of provincial penal
Work should be continued on the investigation to determine the
whereabouts of the victims, despite the res judicata nature of the
decision to dismiss the persons responsible for unlawful deprivation of liberty.
III of the report examines the context of human rights in Mendoza, based on the
testimony heard by the Ad Hoc Committee during its mandate.
The witnesses produced a series of claims that private citizens had been
subjected to violence and abuses by members of the police force.
The report also contains a list of other lawsuits presented in the
province since 1989, calling for an investigation of the same types of
violations. Finally, the Ad Hoc
Committee recommends that the report be published and widely disseminated.
to the provisions of Article 48.1.f of the American Convention, the Commission
placed itself at the disposal of the parties and monitored the process described
in the preceding pages. The
Rapporteur for Argentina made a visit to that country from July 3 to July 8,
1996, during which time he attended numerous working meetings and interviews
concerning the present case in the cities of Buenos Aires and Mendoza.
While there, he observed the work performed by the Ad Hoc Committee and
the active collaboration received from both parties.
Commission has conducted an exhaustive examination of the decision that was
handed down on June 25 by the tribunal created for arbitration purposes.
It has also performed a detailed review of the arguments mustered by the
lawyers who presented the note rejecting the arbitral award.
36. As a
result of that scrutiny, the Commission considers that there has been strict
compliance with the deadlines, the stages agreed
upon and the mechanisms created to define the terms of indemnification.
The criteria utilized by the tribunal and the results obtained are deemed
acceptable in the context of the present case and the points set forth in the
agreement reached for the settlement thereof.
terms of the agreement reached on May 31, 1996 require that the decision of the
Arbitral Tribunal be submitted to the intervening international organs; and it
states that the parties may object to the award in the event of a charge of
Commission takes note that two of the petitioners do not accept the
interpretation and application of Argentine and international jurisprudence in
the tribunal's ruling; it has nevertheless been unable to detect the
arbitrariness invoked. In the
absence of such findings, the Commission deems it appropriate to state that its
purview does not call for a review of the manner in which the norms were
interpreted, considering that both parties had voluntarily agreed to submit the
case to arbitration. They must
therefore abide by the result, regardless of how well founded their expectation
of obtaining a larger sum for the victims may have been.
as the investigation is concerned, the Commission finds that the report of the
Ad Hoc Committee reflects the excellent work performed by its members and their
collaborators. They have
conscientiously carried out the points listed in paragraph two of the agreement
on friendly settlement with respect to verification of the events; the review of
the acts performed in internal jurisdiction; and the consequent criminal
responsibility. The conclusions and
recommendations of that report are considered to be most timely and valuable,
taking into account the serious nature of the acts that had been committed.
to the provisions established in Article 49 of the American Convention, the
Commission concludes that there has been adequate compliance with the points set
forth in the two parts of the agreement for reaching a friendly settlement in
the present case.
the Commission notes that, to date, no punishment has been
imposed on the persons identified in the Ad Hoc Committee's report of
August 16, 1996 as responsible for the violations denounced.
On October 16, 1996 the Commission forwarded a letter indicating this
circumstance to the Minister of Foreign Affairs of Argentina, requesting also
that the Committee's report be made public.
Subsequently, the Commission sent a letter on August 27, 1997 to the
Ministry of Foreign Affairs of Argentina for transmittal to the Governor of
Mendoza. In that letter, the
Commission requested specific information regarding the measures taken by the
Government of Mendoza toward compliance with the Ad Hoc Committee's
recommendations, as well as the status of the investigation to determine the
whereabouts of the remains of Paulo Christian Guardatti; it also requested a
commitment from the provincial Government for the prompt payment of reparations.
September 15, 1997, Carlos Varela Alvarez and Diego Lavado, legal
representatives of Ms. Hilda Lavizzari, forwarded a new letter.
On behalf of Ms. Lavizzari, the petitioners requested that the Commission
approve the friendly settlement in this case.
The petitioners also said:
Therefore, we believe it is convenient that the IACHR keep the case open
until the pending matters are complied with (removal of police officers and
payment of compensation).
43. For the
reasons stated in the previous paragraphs, the Inter-American Commission finds
it necessary to continue to supervise the compliance of this aspect of the
friendly settlement reached by the parties in this case.
Commission expresses its appreciation to the State of Argentina for having
appointed an agent for friendly settlement of the present case, and for having
provided all of the human and material resources for that purpose; and to the
Government of the Province of Mendoza for the decisive collaboration it had
rendered to that end. Likewise, the
Commission extends its thanks to the petitioners for having facilitated
compliance with the various stages of the process.
45. In view
of the considerations and conclusions expressed in this report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
to the State of Argentina--and, through the offices of that State, to the
Government of Mendoza Province--that the report of the Ad Hoc Committee dated
August 12, 1996 be published and given widespread publicity.
to supervise actions taken by the State of Argentina until such time as there is
full compliance with the recommendations of the Ad Hoc Committee report of
August 16, 1996; for this purpose, it requests that the State submit follow-up
reports to the Inter-American Commission every three months, which shall be
counted from the date the present report is forwarded.
48. Decides to make this report public immediately and to include it in its Annual Report to the General Assembly of the OAS.
"The combination of series of related criminal acts (resulting
in a penalty less severe than the mere summation of penalties of the
independent crimes)" according to the Butterworth Legal Dictionary.
"The combination of series of related criminal acts (resulting
in a penalty less severe than the mere summation of penalties of the
independent crimes)" according to the Butterworth Legal Dictionary.