REPORT Nº 67/99
On December 23, 1996, and January 13, 1997, the Permanent
Assembly for Human Rights (Asamblea
Permanente por los Derechos Humanos; hereinafter “the
petitioner”) submitted a petition to the Inter-American Commission on
Human Rights (hereinafter “the Commission” or “the Inter-American
Commission”) alleging that during the period of time that Elba
Clotilde Perrone and Juan José Preckel were illegally detained and
exiled under orders from the de
facto government that held power between 1976 and 1983, they failed
to receive their earnings from the General Tax Directorate. The claims
and suits they presented in order to obtain payment were arbitrarily
rejected by the Argentine authorities.
The petitioner claimed that by doing so, the Argentine Republic
violated the right to a fair trial (Article 8), to property (Article
21), and to equality before the law (Article 24), together with the
obligation of respecting the rights and of adopting domestic legal
provisions (Articles 1 and 2) contained in the American Convention on
Human Rights (hereinafter “the Convention” or “the American
Convention”), together with the rights to work and fair remuneration
(Article XIV), to the recognition of juridical personality and civil
rights (Article XVII), to a fair trial (Article XVIII), and to property
(Article XXIII) enshrined in the American Declaration of the Rights and
Duties of Man (hereinafter “the Declaration” or “the American
Declaration”), with respect to Ms. Perrone and Mr. Preckel.
In examining this case, the Commission concluded that it has
competence in the matter and that in accordance with Articles 46 and 47
of the American Convention, the petitioner’s allegations regarding
Articles 8, 21, and 3 of the Convention, which protect the same rights
as Articles XVII, XVIII, and XXIII of the Declaration, are admissible.
With respect to the aforesaid violations, the Commission will refer
solely to the provisions of the Convention and not to those of the
Declaration; this is because once the American Convention came into
force for the Argentine State, it–and not the Declaration–became the
Commission’s main source of applicable law, provided that petitions
refer to alleged violations of rights that were substantially identical
in both instruments and do not describe a situation of continuous
violation. In addition, the Commission ruled that the petitioner’s
allegations regarding Articles 24 and 25 of the Convention were also
The right to work and fair remuneration (Article XIV) is set
forth in the Declaration but not in the Convention; however, the
Commission believes that this circumstance does not preclude its
competence in the matter since, under Article 29(d) of the Convention,
“no provision of this Convention shall be interpreted as [. . .]
excluding or limiting the effect that the American Declaration of the
Rights and Duties of Man and other international acts of the same nature
may have.” Hence, the
Commission ruled that the petitioner’s accusations regarding the
alleged violation of this provision enshrined in the Declaration were
PROCESSING BY THE COMMISSION
On December 9 and 13, 1996, respectively, the Commission received
complaints alleging that the rights of Ms. Perrone and Mr. Preckel had
been violated; since they dealt with similar matters, the two files were
accumulated, and they were sent to the State on April 23, 1997.
On July 25 and September 4, 1997, the State requested two
successive extensions, which were granted on July 31 and September 15,
1997, respectively. On
October 31, 1997, the State submitted its comments; these were sent to
the petitioner on November 6, 1997.
The petitioner replied on January 6, 1998, and this response was
transmitted to the State on February 10, 1998.
On February 26, 1998, during its 98th regular session, the
Commission held a hearing for the parties to examine the admissibility
of the case. The petitioner’s note arising from that meeting was sent
to the State on March 6, 1998. On March 10, 1998, the Commission wrote
to the parties, making itself available in order to reach a friendly
settlement. On March 13, 1998, the State submitted its comments and, on
April 13, 1998, it requested additional time before it could present its
decision on the Commission’s proposal for friendly settlement
negotiations. This extension was granted on May 26. On June 17, 1998,
the petitioner submitted its comments, which were forwarded to the State
on July 14, 1998, together with an additional copy of the May 26 note.
On July 22, 1998, the State submitted its comments and, on July 24,
1998, it repeated the position it had held in previous communications,
maintaining that this case was inadmissible and declining the friendly
The State sent its comments on August 20, 1998; they were
forwarded to the petitioner on August 27, 1998, replied to by the
petitioner on October 27, 1998, and resent to the State on November 19,
1998. The State submitted its comments on January 19, 1999. On March 1,
1999, the Commission granted the parties a hearing at its 102nd regular
POSITIONS OF THE PARTIES
The petitioner’s position
For the purposes of this report, the aim of which is to examine
the petition’s admissibility, the petitioner’s allegations can be
summarized as follows:
The Permanent Assembly for Human Rights (the petitioner)
stated that Elba Clotilde Perrone and Juan José Preckel worked at the
General Tax Directorate, at that time an agency of the Treasury
Secretariat, attached to the executive branch’s Ministry of the
Economy, until they were illegally arrested in the city of Mar del
Plata, Buenos Aires province, on July 6, 1976. In 1977 they were placed
in the custody of the national executive without having faced trial and
after suffering torture and other degrading treatment. During this
period, which was characterized by a breakdown in the national legal
system brought on by the de facto
government that was in power, Ms. Perrone
and Mr. Preckel were secretly kept under arrest at different military
10. In Ms. Perrone’s case, this
situation lasted until October 16, 1982–six years, three months, and
ten days. She was then released, albeit under surveillance, and on July
25, 1983, she was unconditionally released from the national
Through negotiations conducted by the German embassy and Amnesty
International, Mr. Preckel obtained a passport that enabled him to leave
the country, which he did on September 7, 1979.
His exile lasted until December 1984, when he returned to
Argentina through the efforts of the aforesaid institutions and the
Intergovernmental Committee for European Migrations.
While they were in the illegal situation that kept them from
working, they were absent from their jobs; consequently, the
administrative proceedings described in Article
36 of Decree 1798/80 were initiated.
These proceedings were ultimately closed on October 6, 1983, with
the restoration of the democratic regime, after it had been decided that
they were not guilty of the charges.
The distress the complainants suffered as a result of all these
circumstances, which is not covered by their claims, was redressed under
the terms of Law 24.043.
After they had returned to their jobs, Ms. Perrone filed an
administrative claim in April 1983, demanding her right to receive
earnings for the aforesaid period; Mr. Preckel joined the suit in July
1985. The Technical and
Legal Affairs Directorate of the General Tax Directorate and the General
Directorate of Legal Affairs of the Ministry of the Economy declared
these claims admissible. The Office of the National Treasury Attorney
ruled that they be thrown out: this was because, although they might
have been admissible under the text of Collective Labor Agreement Nº
46/75 and the statute approved by Decree Law 6666/57 since there was no
specific provision indicating the contrary, Circular Nº 5 of 1977 from
the General Secretary of the President’s Office restricted payment to
situations in which it was authorized by such a specific provision.
This opinion formed the basis for the decision of the Minister of
the Economy, who dismissed the claims in Resolution Nº 75 of March 19,
1987 (Ms. Perrone), and Resolution Nº 1217 of December 17, 1987 (Mr.
Preckel); these resolutions concluded the administrative proceedings. In
the petitioner’s opinion, under the above-mentioned circular,
“payment of indemnification based on the updated earnings that the
agent should have received” could have been considered admissible, in
light of the peculiar nature of this situation and because no negligence
or blame could be attached to the agents.
The victims filed suit with the courts in June 1988. Ms.
Perrone’s suit sought payment of the earnings not received between
July 6, 1976, and October 19, 1982, of the days off that she accrued but
which she neither enjoyed nor had credited to her, and recognition of
her seniority for reasons related to social security and other purposes.
Mr. Preckel claimed payment of earnings not received between July
6, 1976, and February 4, 1985, his share in the Incentive Fund, the days
off that he accrued but which he neither enjoyed nor had credited to
him, and recognition of his seniority for reasons related to social
security and other purposes. The
suits were based on Article 14.c of Decree 3413 of 1979, which justified
the payment of earnings when agents of the General Tax Directorate were
absent from work on account of weather conditions and proven instances
of force majeure.
The petitioner holds that the judge introduced a completely
spurious issue into the case and did not give a ruling on the factual
and legal issues put forward in the claim.
The petitioner claimed that in both cases, the first-instance
judge stated that a suit against the State for the damages arising from
the illegal arrests, prolonged detention, and forced exile suffered by
the victims might have prospered; however, the judge also noted that he
could not resolve that action, since that would have implied an undue
application of the principle of jura
novit curia [the court knows the laws].
He went on to say that the events that led to their absence from work
were eminently political in nature, and so therefore the General Tax
Directorate could not be held responsible for them.
Appeals against this decision made by Preckel and Perrone had two
different outcomes. In Mr. Preckel’s case, the appeals chamber upheld
the first-instance judgment because “payment of wages for services not
rendered is inadmissible” and because the rules quoted by the
claimants were applicable to leaves of absences and reasons other than
those involved in the case. It also concluded that it was not incumbent upon the General
Tax Directorate, an autonomous state body, to bear the burden of
redressing the harm caused by any possible illegal actions by the
executive branch. In the
proceedings initiated by Ms. Perrone, the appeals chamber overturned the
first-instance judgement and admitted the substance of the claim.
Mr. Preckel filed an extraordinary appeal against these decisions
and, in Ms. Perrone’s case, so did her opponent.
The petitioner notes that the Supreme Court of Justice of the
Nation, in a ruling dated May 21, 1995, and without analyzing the
claims, threw out Mr. Preckel’s appeal and ruled that the remedy filed
by the counterpart in Ms. Perrone’s case was admissible.
The petitioner reports that Ms. Perrone and Mr. Preckel have been
indemnified, on an equal and general basis, in accordance with Law
24.043. They maintain that
this represents only partial indemnification, in that it covers only the
violations of the rights of personal freedom, life, and humane
treatment, without making any distinction regarding particular
circumstances (education, occupation, etc.), and excludes
indemnification for the employment relationship existing with the
General Tax Directorate. To
obtain the indemnification payment, Ms. Perrone previously withdrew the
suit for damages she had begun against the state, which did not cover
the lost earnings from her employment. However, she never withdrew the
administrative actions, which are the substance of this petition before
the Commission. As for Mr. Preckel, he never filed suit for damages but did
collect the indemnification in accordance with the law.
The petitioner alleges that by illegally arresting them and
encouraging their exile, the State prevented the victims from providing
the services for which they were contracted.
It also introduced “legislation” preventing them from
receiving the earnings they would have been entitled to during the time
when the illegal situation kept them from working.
The petitioner also claims that the right of equality before the
law was breached in that those agents of the public administration who
continued to work, and those who did not on account of force
majeure, continued to receive their salaries.
Being a “detainee” must be considered an instance of force majeure and, consequently, must be covered by the terms of
Article 14.c of Decree 3413 of 1979.
The petitioner believes that the right to private property was
violated, which is closely related to the guarantee of equality before
the law and the right of fair remuneration for work.
In this regard, it holds that the right of property covers all
the credits, expectations, and assets in general that in any way make up
a person’s patrimony. In particular, wages and the corresponding right
to receive them are, on account of both their nature and their purpose,
an expression of the right of property and, that being so, the State is
obliged to protect them.
The petitioner also claims that the right to a justice and fair
trial was violated in that, first, the judge did not rule on the legal
and factual allegations put forward in the suit and, second, he
introduced a completely spurious issue into the case, saying that the
events that led to their absence from work were eminently political in
nature and the result of actions by the executive branch and that
therefore the General Tax Directorate could not be held responsible for
them. With this, the judge introduced a defense that had not been used
by the defendant at trial; this was therefore an arbitrary action in
that the affected party was unable to discuss its admissibility, thus
undermining the right of defense as guaranteed by the Constitution.
The State’s position
The State maintains that this claim is based on the payment
obligations of the General Tax Directorate as the employer and that the
administrative proceedings initiated, pursuant to Article 39 of Decree
1798/80, ruled that earnings are not to be paid when the suspension
arises from actions unrelated to work, except for the time following
release and prior to a return to work being authorized. Consequently,
judicial decisions under that jurisdiction, in accordance with current
law and jurisprudence, have maintained that “no payment shall apply
when no corresponding service has been rendered.” In addition, the
State maintains that Ms. Perrone and Mr. Preckel are entitled to
request, without application of any statute of limitations, recognition
of their periods of inactivity for the purposes of their retirement
alone, even though they shall not be paid their salaries because no
corresponding services were rendered.
As regards the exhaustion of domestic remedies, the State notes
that Mr. Preckel and Ms. Perrone began and concluded a domestic claim,
through contentious-administrative channels, against the State as
employer, but that they have not exhausted domestic remedies in the
sense of Article 46(1).a of the Convention because those remedies were
not appropriate. The suit they filed in June 1988 should have addressed
the State’s noncontractual liability for damages arising from their
arrest and subsequent removal from their jobs and, in such a case, could
have covered the claims set forth herein. If such was the intent, the
State holds, then the course chosen was not the correct one. The State
claims that the job-related legal action was initiated in June 1988,
before Law 24.043 established the State’s compensation policy, under
which both of them received redress that excluded all other
indemnification. Moreover, when they went before the courts in 1988,
they were uncertain about the existence of an administrative channel for
redress, since the corresponding procedure began with Decree 70/91,
which was published in the Official Bulletin on January 16, 1991.
The State maintains that the suits they filed were clearly
grounded on their relationship of dependence with an autonomous body,
and that those suits could not be considered actions for damages by
virtue of a generous application of the principle of jura
novit curia [the court knows the laws]
because that would have implied ignoring the letter thereof. The
State concludes that the object of the suit and the identification of
the responsible area of government–the General Tax Directorate–do
not allow the object of the suit in question to be turned into a damages
The State notes that the General Tax Directorate is completely
unconnected to the causes behind the arrests, which were ordered by the
Interior Ministry; consequently, there is no legal possibility of it
assuming responsibility for decisions adopted by another agency. As
regards the processing of the domestic legal action, there are rules
that clearly indicate what bodies are responsible for representing the
State at trial in different situations. Hence, remedies for reaching a
judicial ruling on the question of their earnings did exist, but they
were neither invoked nor exhausted.
The State believes that the indemnification granted has satisfied
the claims of Ms. Perrone and Mr. Preckel, in obtaining the benefit set
forth in Law 24.043 for individuals who, during the state of siege, were
placed in the national executive’s custody, regardless of whether or
not they began proceedings for damages, and provided that they had
received no indemnification under a judicial ruling in connection with
the actions covered by said law.
Article 9 of Law 24.043 stipulates that “payment of the benefit
implies relinquishment of all right to indemnification for damages
arising from deprivation of freedom, arrest, being kept under executive
custody, death, or physical injury and shall exclude all other benefits
or indemnifications for the same cause.”
It cannot be argued that this was a special situation, since all
the individuals who have received indemnification were prevented from
working or practicing their trade, industry, or profession and,
consequently, from receiving payment by the same cause: their arrest.
The State’s reparations policy for the causes addressed herein
can be found in the friendly settlement reached in case Nº 10.288 and
other cases in the Commission’s archive and is reflected in Decree Nº
70/91; Law 24.043 subsequently extended the scope of the beneficiaries.
In report Nº 1/93 the Commission expressed its recognition of the
Argentine State’s having made compensation payments that were accepted
by the petitioners and based on respect for human rights.
The State understands that the Commission considers that the
benefits granted by Law 24.043 constitute redress in the sense used in
the inter-American human rights system and are a substitute for damages.
Consequently, all claims related to the facts that make up the juridical
substance of the provision are subsumed by receipt of that benefit,
which comprises in totum
[totally] the payment of all amounts that could arise therefrom. Since
Perrone and Preckel invoked the provisions of the State’s reparations
policy, the State has covered the responsibility due to it for the
petitioners’ arrest, and therefore this petition does not deal with
facts that represent a violation of protected rights.
ANALYSIS OF ADMISSIBILITY
27. The Commission’s rulings on the
admissibility of the cases brought before it are intended not only to
invest its decisions with juridical certainty and clarity, but also to
focus the parties’ attention on the key issues those cases entail.
The Commission’s competence ratione
personae, ratione temporis, and ratione
The Commission has active and passive ratione
personae competence (i.e.,
competence vis-à-vis the persons involved) to
hear this case in that, first, the petitioner alleges that a state party
provisions of the Convention and the Declaration, affecting Ms. Perrone
and Mr. Preckel, the presumed victims of said violations.
Secondly, as regards ratione temporis competence (i.e.,
in terms of when the incidents occurred), the Commission notes that the
petitioner expressly excludes from the substance of the petition the
deprivation of freedom and the cruel and inhuman treatments that began
during the 1970s, since they were covered by the benefits that
the alleged victims received under Law 24.043.
Neither does the petition cover the General Tax Directorate’s 1983
decision that ruled that Perrone and Preckel were not liable in the
However, the petitioner’s complaint does cover the decisions by
the Ministry of the Economy that rejected the claims made by the two in
1987. In addition, the petitioner notes that the complaint before the
Commission also covers the subsequent judicial rulings of the
first-instance court and the national contentious-administrative appeals
chamber. The Commission notes that the aforesaid decisions were handed
down after the Convention had come into force for Argentina and,
consequently, they will be examined as alleged violations of the
Thirdly, as regards ratione materiae competence (i.e.,
vis-à-vis the substantive issues of the case), the petition alleges
violations of the right to a fair trial (Article
8 of the Convention), to property (Article 21), and to equality before
the law (Article 24), as well as of the obligation of respecting those
rights and of adopting domestic legal provisions (Articles 1 and 2).
Similarly, the petitioner claims there were violations of the
right to work and fair remuneration (Article XIV), to the recognition of
juridical personality and civil rights (Article XVII), to a fair trial
(Article XVIII), and to property (Article XXIII) as set forth in the
Declaration. In this regard, the Commission holds that after the
Convention had come into force for the Argentine State, it–and not the
Declaration–became the Commission’s primary source of applicable
provided that petitions refer to alleged violations of rights that are
substantially identical in both instruments
and do not describe a situation of continuous violation.
32. In the case at hand, although
there is no situation of continuous violation, there is a similarity of
substance between the provisions of the Declaration and those of the
Convention invoked by the petitioner.
Thus, the rights to a fair trial (Article XVIII), to property
(Article XXIII), and to the recognition of juridical personality and
civil rights (Article XVII) enshrined in the Declaration are subsumed by
the provisions that establish the rights protected by Articles 8, 21,
and 3 of the Convention. Hence,
in connection with those violations of the Declaration, the Commission
will refer solely to the provisions of the Convention.
33. However, the right to work and
fair remuneration (Article XIV) enshrined in the Declaration is not
protected by the Convention. The
Commission believes that this situation does not preclude its ratione
materiae competence since,
under Article (29)(d) of the Convention, “no provision of this
Convention shall be interpreted as [. . .] excluding or
limiting the effect that the American Declaration of the Rights and
Duties of Man and other international acts of the same nature may
have.” Consequently, the Commission will examine this violation of the
B. Additional requirements for
the admissibility of the petition
Exhaustion of domestic remedies
The Commission repeats that the rule covering the filing and
exhaustion of domestic remedies set forth in Article 46(1).a of the
Convention requires that individuals who wish to lodge a complaint or
petition with the Commission against a State must previously make use of
the remedies offered by that country’s legal system.
The principle of subsidiarity in the protection offered by the
Convention requires that the substance of all petitions first be heard
by domestic agencies. In the case at hand, neither the State nor the
petitioner question the fact that Ms. Perrone and Mr. Preckel invoked
and exhausted the administrative channels–both internally to the
administration and under contentious-administrative jurisdiction–which
culminated, after the available remedies had been exhausted, with the
ruling handed down by the Supreme Court of Justice of the Nation.
However, the State claims that this remedy was not appropriate;
it therefore holds that Ms. Perrone and Mr. Preckel neither filed nor
exhausted the available domestic remedies, in contravention of the terms
of Article 46(1)(a) of the Convention. The Commission notes that Article
46(1)(a) mentions “generally recognized principles of
international law,” which do not only refer to the formal existence of
such remedies, but also to their being applicable and effective. As the
Inter-American Court has stated: “adequate domestic remedies are those
which are suitable to address an infringement of a legal right. A number
of remedies exist in the legal system of every country, but not all are
applicable in every circumstance.”
The Commission believes that in this case it is incumbent upon the State
to prove what remedies are available. In this regard, the Inter-American
Court of Human Rights has ruled that “the State claiming
non-exhaustion has an obligation to prove that domestic remedies remain
to be exhausted and that they are effective.”
36. With regard to the channels that
Ms. Perrone and Mr. Preckel should have used, the State noted that they
could have filed suit against the State for damages arising from their
separation from their jobs, including the claims contained herein.
If their intent was to obtain redress for damages, then the
channel they chose--that of contentious-administrative
proceedings--was incorrect. Moreover,
when they went before the courts in 1988, they were uncertain about the existence of an administrative channel for
redress, since the corresponding procedure began with Decree 70/91,
which was published in the Official Bulletin on January 16, 1991.
However, the State concludes that the object of the suit and the
identification of the responsible area of government--the General Tax
Directorate--do not allow the object of the suit in question to be
turned into a damages suit.
The Commission notes that the petitioner’s allegations
essentially address the judicial authorities’ refusal to admit its
claim based on the payment obligations incumbent on the General Tax
Directorate as the employer. Contentious-administrative
proceedings, as used by the alleged victims in their attempt to secure
payment of their job earnings, differ from civil actions for damages. The petitioner stated in the case file that the issue is not
the responsibility of the State through its illegal actions of arrest
and torture, but rather that of the employer, an autonomous State agency
that ordered them to be suspended from work and did not pay their wages
during the period of their arrest Under
these circumstances, the Commission believes that Ms. Perrone and Mr.
Preckel have invoked and exhausted the appropriate remedies available in
the Argentine legal system for resolving their situation. Consequently,
the Commission holds that domestic remedies have been exhausted in
accordance with Article 46(1)(b) of the Convention.
In this case, the ruling of the Supreme Court of Justice
rejecting the appeal filed against the dismissal of the extraordinary
remedy was handed down on June 11, 1996, in the proceedings dealing with
Ms. Perrone and Mr. Preckel. The petitions were filed with the
Commission on December 9, 1996, (Ms. Perrone) and December 13, 1996 (Mr.
Preckel). The Commission
holds that Ms. Perrone’s petition was submitted within the prescribed
six-month period. Mr. Preckel’s petition, however, was one day late.
The State made no claim regarding failure to comply with this
requirement. Since the petitions were combined and since the State made
no objection the Commission holds that the filing period requirement set
forth in Article 46(1)(b) of the Convention has been met.
Duplication of proceedings and res
Article 46(1)(c) stipulates that to be admissible, a petition
must not cover a question pending in any other international proceeding
(nonduplication) and Article 47(d) requires that the petition not be
substantially the same as one previously studied by the Commission or by
another international organization (res
judicata). In the case at hand, the parties have neither claimed nor
proved the existence of either of these circumstances. Consequently, the
Commission holds that these requirements have been met.
Nature of the allegations
Regarding the requirements of substance for a petition to be
declared admissible, Article 47(b) states that inadmissibility will be
declared when the allegations do not constitute a violation of rights
guaranteed by the Convention. The Commission holds that if they are
true, the petitioner’s allegations do tend to establish violations of
the human rights protected by Articles 3, 8, 21, 24, and 25 of the
American Convention, together with the right of work and fair
remuneration (Article XIV) enshrined in the American Declaration.
41. The Commission concludes that it is competent to hear this case and that the petition is admissible pursuant to Articles 46 and 47 of the American Convention.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible.
To notify the parties of this decision.
To proceed with the analysis of the merits of the case.
4. To make itself
available to the parties in order to reach a friendly settlement based
on respect for the rights enshrined in the American Convention, and to
invite the parties to make a statement regarding said possibility.
To publish this
decision and to include it in its Annual Report to the OAS General
Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on the Fourth day of May, 1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice Chairman; Claudio Grossman, Second Vice Chairman; and Commissioners Carlos Ayala Corao, Alvaro Tirado Mejía, and Jean Joseph Exumé.
See, inter alia, Inter-American Commission on Human Rights, Annual Report
1998, Report Nº 49/97, Case 11.520, Tomás Porfirio Rondín et
al., “Aguas Blancas” (Mexico), OEA/Ser/L/V/II.98, February
18, 1998, paragraph 50, p. 8.
its instrument ratifying the Convention at the General Secretariat
of the Organization of American States on September 5, 1984.
As the Inter-American Court of Human Rights has stated: “For the
States Parties to the Convention, the specific source of their
obligations with respect to the protection of human rights is, in
principle, the Convention itself.” Advisory Opinion OC-10/89
(Interpretation of the American Declaration of the Rights and Duties
of Man Within the Framework of Article 64 of the American Convention
on Human Rights), July 14, 1989, paragraph 46.
As the Inter-American Court has stated: “These States cannot
escape the obligations they have as members of the OAS under the
Declaration, notwithstanding the fact that the Convention is the
governing instrument for the States Parties thereto.” Advisory
Opinion OC-10/89, July 14, 1989, paragraph 46.
The Commission has established that it is competent to examine
violations of the Declaration and of the Convention provided that
they involve a situation of continuous violation of the rights
protected in those instruments; for example, a denial of justice
beginning before the State in question ratified the Convention and
persisting after said State has expressed its consent and the Treaty
has come into force for it. See, for example, Res. 26/88, Case
10.109 Argentina, IACHR Annual Report 1987-1988.
Velásquez Rodríguez Case, Preliminary Objections, Judgment of July
29, 1988, paragraphs 64.
Velásquez Rodríguez Case, Preliminary Objections, Judgment of June