On January 25, 1999, Angel Rozas, Eduardo Aníbal Moro, Carlos
Angel Pavicich, Leandro Despouy, Olinda Montenegro, and María Teresa
Flores (hereinafter "the petitioners"), lodged a petition with
the Inter-American Commission on Human Rights (hereinafter "the
Commission", the "Inter-American Commission" or the
"IACHR") alleging violation by the Argentine Republic
(hereinafter the "State", the "Argentine State" or
"Argentina") of the rights to a fair trial (Article 8), to
participate in government (Article 23), to equal protection (Article
24), and to judicial protection (Article 25), and of the obligation of
the states parties to respect rights without any discrimination (Article
1(1)), provided for in the American Convention on Human Rights
(hereinafter "the Convention", or the "American
The petition alleges that the Argentine State violated the rights
of Angel Pavicich and Olinda Montenegro inasmuch as the Senate, despite
the fact that they fulfilled the requirements for occupying the
positions of Senators for the Province of El Chaco, issued Resolution
1083/98 whereby it dismissed their claims and instated in those
positions Mr. Hugo Abel Sager and Mrs. Lidia Beatriz Ayala.
The petition further asserts that the State violated the rights
to a fair trial and to effective recourse as a result of the decisions
rendered by the Supreme Court and the National Electoral Chamber.
The State affirms that the requirements set forth in Article 46
of the American Convention had been met.
However, the State alleged that the complaint does not satisfy
the requirement established in Article 47(b) of the Convention and
requested that the Commission declare the case inadmissible.
4. The Commission
decided to declare the instant case admissible as it fulfills the
requirements provided for in Articles 46 and 47 of the Convention.
PROCESSING BY THE COMMISSION
The Commission received the petition on January 25, 1999. The
petitioners also requested a hearing before the Commission.
On March 4, 1999, during the 102nd regular session of the IACHR,
the Commission held a hearing that was attended by the representatives
both of the petitioners and of the State in order to set out their
positions with respect to the admissibility of the case.
The Commission opened the instant case on April 19, 1999, and
sent the pertinent portions to the State, granting it a period of 90
days in which to reply counted from the date said communication was
received: April 26, 1999. On July 23, 1999, the State was granted an
extension of 45 days in which to submit its observations on the instant
case. On September 20 the State was accorded an additional extension
until October 18, 1999. The Commission received the State’s
observations on October 15 and forwarded them to the petitioners on
October 26, 1999, giving them a period of fifteen days in which to
respond. The petitioners submitted their observations on November 12,
1999, attaching, among other elements, a decision of the
Inter-Parliamentary Union referring to the instant case, dated October
POSITIONS OF THE PARTIES
6. For the purposes of
the instant report, which addresses the admissibility of the case, the
positions of the parties may be summed as follows:
7. By virtue of Article
54 of the Argentine Constitution of 1994, each province is represented
by three senators who sit in the Senate.
According to the transitory regime that governs the elections of
1995 and 1998, provinces have the exclusive power, via their
Legislatures, to elect their representatives in the Senate under an
indirect system until 2001, from which point senators shall be elected
by direct vote of the citizens of each province.
The instant case deals with the procedure applied for the
election and appointment of senators for the Province of El Chaco in
1998 and the decisions of the judicial organs upon taking cognizance of
the various remedies sought by the petitioners under domestic
The petitioners allege that Carlos
Angel Pavicich and Olinda Montenegro
met all the requirements set out in the Constitution in order to be
elected senators. First,
the political parties, Unión Cívica
Radical, Socialista, Intransigente, Autonomía de Bases, and Principios,
all from El Chaco District and members of the political alliance, Alianza
Frente de Todos, which won the provincial elections in 1997, agreed
to put forward Mr. Carlos Angel Pavicich and Mrs. Olinda Montenegro as
candidates for senator and alternate, respectively, in order to fill the
seat of the second senator for the majority.
By the same token, on September 21, 1998, the other parties
making up the above alliance, namely the partido Demócrata Cristiano,
Movimiento de Izquierda and Nuevo Espacio (in process of formation),
formally endorsed the aforementioned candidates.
Second, the candidates satisfy the legal and statutory
conditions, since on that same date the representatives of Alianza
Frente de Todos requested the Federal Judge with competence over
electoral matters to issue a certification of fulfillment of legal and
statutory requirements by the aforementioned candidates.
This certification was issued by the National Electoral Chamber
on September 23, 1998. Third,
they were appointed on September 25, 1998 by the Chamber of Deputies,
and the Senate was notified on October 2, 1998.
The petitioners say that the majority party membership of Alianza
Frente de Todos in the Provincial Legislature is composed of 16
deputies and that the party membership of the Justicialista party of El
Chaco is made up of 13 deputies. The
latter objected to the appointment of Mr. Pavicich
and Mrs. Montenegro in the Senate,
alleging that the Justicialista party was the political party with the
largest number of members in the Legislature at the time of the
election. The parties
attended a public hearing in the Senate on October 13, 1998 to
present their positions. On
October 21, 1998 the Senate decided to approve the objection presented
by the Justicialista party and to dismiss the claims of Mr. Pavicich and
Mrs. Montenegro because the electoral alliance that had put them forward as candidates did not
hold a majority of seats in the Provincial Legislature.
Furthermore, the Senate appointed Mr. Sager and Mrs. Ayala of the
Justicialista party as Senator
and alternate for the Province of El Chaco.
11. In accordance with Article 64 of
the Constitution, Provinces elect senators and the only power that the
Senate has is to declare that the person elected does not satisfy the
conditions for holding the post; it cannot, however, act as an elector.
The petitioners allege that the Senate exceeded its authority
because in the instant case no “titles” were granted by the
competent authority to Mr. Sager and Mrs. Ayala of the Justicialista party.
12. The petitioners also state that
Article 4 of the Rules of Procedure of the Senate provides that “when
any of the senators-elect is rejected, the Speaker of the Senate shall
communicate that fact to the Executive Branch and to the provincial
governments in order to hold a new election”.
In such cases, then, the only admissible course of action would
be nullification and to inform the provincial legislatures of those
facts in order that they proceed to hold a new election.
As to fulfillment of the requirements of admissibility, the
petitioners allege that the domestic remedies available to them have
been exhausted. On November
12, 1998, the Governor of the Province of El Chaco requested the Supreme
Court of Justice to declare the decision of the Senate unconstitutional
and to pass a motion not to innovate in order to prevent the senators
allegedly appointed in an irregular manner from being sworn in.
14. On November 24, 1998, the Supreme
Court of Justice rejected the petition not to innovate and the complaint
because it considered that they involved a political matter not subject
to jurisdiction. The
following day the senators appointed by the Senate proceeded to be sworn
in and instated in their posts.
Carlos Angel Pavicich and Olinda Montenegro filed an amparo
proceeding with a federal judge with competency over electoral
matters against Senate Resolution DR-1083/98 for violation of the rights
to participate in government of the senators elected in accordance with
the rules. In addition to that amparo
proceeding they sought precautionary measures designed to prevent
the swearing in of the senators appointed in an irregular manner.
On November 23, 1998, the National Electoral Chamber approved the
precautionary measure "informing the H[onorable] Senate,
personified by its speaker, that it must forbear from carrying out
Resolution DR-1083/98 of that H[onorable] Body, which provides the
incorporation of Mr. Hugo Abel Sager as titular Senator for the Province
of El Chaco and Mrs. Lidia Beatriz Ayala as alternate Senator for that
same province for the period 1998-2001, until such time as a final
judgement is rendered on the principal cause". The final judgement
of December 18, 1998 found that the decision of the Supreme Court of
Justice must be obeyed.
The Supreme Court of Justice decided not to pronounce
judgement on the case, invoking the doctrine on political matters not
subject to jurisdiction. The
petitioners allege that this is an arbitrary judgement and that the
State has violated Articles 8 and 25 of the Convention by infringing
upon the rights to due process and to effective judicial protection.
18. The State recognizes that
domestic remedies have effectively been exhausted by the judgement of
the Supreme Court of Justice of November 24, 1998, and that the deadline
provided for in Article 46(1)(b) of the Convention had been met, and
that the matter is not pending in
another international proceeding for settlement.
However, it requests, on the basis of Article 47(b) that the
petitioners’ complaint be declared inadmissible because it does not state
facts that tend to establish a violation of the rights guaranteed by the
Convention and advised that, should the Commission pronounce a
decision on the matter, it would be acting as a fourth instance.
19. The State says that in the
instant case, both the Alianza
Frente de Todos party and the Justicialista
Party claimed to have the majority in the Legislature.
The Senate decided that the senator‘s seat for the period
1998-2001 in representation of the Province of El Chaco corresponded to
the Justicialista party on grounds of it being the party that had the
most number of seats in the Provincial Legislature at the time of the
senatorial election and that Alianza
Frente de Todos did not have the right to have its candidate
The State alleges that, at the time of the election, the
Provincial Legislature had 13 deputies from the Justicialista party, 10
from Alianza Frente de Todos,
five from the Unión Cívica
Radical (U.C.R.) party, and four from the Acción
Chaqueña party. The electoral alliance Frente
de Todos is one thing, and the parliamentary faction Alianza Frente de Todos another.
The electoral alliance gave its mandate to 10 deputies, while the
parliamentary faction incorporated other forces and, in addition,
included five legislators who represent Unión
Cívica Radical, together with one from the Acción
21. The State affirms that the
Senate, in making its decision, abided by what is stated in the text of
the Constitution, which refers to "electoral alliances" and
not to "parliamentary alliances".
It also based its decision on Law 24.444, which imposed the
criterion of the "origin of the mandate or of the seat" for
the purposes of determining how many seats corresponded to each party or
The State alleges that Law 24.444 refers also to the electoral
alliances or parties “that took part in the last provincial election
to renew provincial legislative posts.” Therefore, only the three
parties that took part in the 1997 provincial election may be
considered: the Acción Chaqueña
party, Alianza Frente de Todos,
and the Justicialista party. Unión
Cívica Radical, as an individual party, and for as long as the
electoral alliance formed for the election of 1997 remained in full
effect, could not, on its own, have nominated any candidate to occupy a
senator’s seat. The
inability to obtain the necessary number of legislators, either elected
for Unión Cívica Radical in
1995, or incorporated in Alianza
Frente de Todos in 1997, has to do with respect for the will of the
voters in 1995, who backed the identities and profiles of different
23. The State alleges that the
Constitution of the Province of El Chaco was reformed and the power of
the Chamber of Deputies to “elect senators and consider their
was abolished, it remaining implicit that the Fourth Transitory Clause
of the Argentine Constitution would apply directly.
Furthermore, Article 4 of the Rules of Procedure of the Senate
requires that a new member be elected whenever the position of a senator
becomes vacant; however, the State advises that the case sub-examine
does not involve a situation in which such a rule would apply.
The Senate considered as sufficient "title" for the
candidacy of Mr. Hugo Sager and Mrs. Lidia Ayala the communication of
the Provincial Legislature, which mentioned who voted for each candidate
and specified the composition of the parliamentary factions, the choice
of party to which the seat pertained, and the respective electoral
As for the rights to a fair trial and to effective recourse, the
State alleges that the Supreme Court of Justice exercised its judicial
authority to determine if the proceedings of the Senate were in keeping
with the Constitution and legal procedures and regulations, and it
concluded that the Senate had acted without overstepping the bounds of
Furthermore, the judgement of the Supreme Court of Justice is
based on grounds that warrant the operative part of the ruling and
which, even though unfavorable to the petitioners’ claim, cannot for
that reason be called arbitrary as there is an “apparent basis” for
The State says that the petitioners, represented by the
Government of the Province of El Chaco, had access to a simple and
prompt recourse in the form of the declaratory action they filed
alleging the unconstitutionality of Senate Resolution DR-1083/98 before
the Supreme Court of Justice, and that they had a chance, if they proved
violation of the Constitution, of obtaining a judicial decision quashing
the actions performed by the Senate.
The State also alleges that the petitioners’ right to defense
was also respected.
Competence of the Commission ratione
loci, ratione personae, ratione temporis and ratione materiae
The Commission is competent to take up the petition lodged by the
petitioners. The facts
alleged in the petition purportedly harmed individuals subject to the
jurisdiction of the State when the duty to respect and ensure the rights
recognized in the American Convention was in force for the State.
Accordingly the Commission now proceeds to analyze whether the
instant case satisfies other requirements provided for in Articles 46
and 47 of the American Convention.
Other admissibility requirements for the petition
a. Exhaustion of
Article 46(1)(a) of the Convention establishes as a requirement
for a petition to be admitted, “that
the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law”.
In the instant case the petitioners alleged that domestic
remedies in relation to the alleged violations were exhausted with the
lodging of two petitions. The
State declared that the remedies under domestic law had been exhausted
in accordance with the provisions of Article 46(1)(a) of the Convention. Therefore, the Commission concludes that the petition meets
the requirement set out in Article 46(1)(a) of the Convention.
Period of presentation
Article 46(1)(b) of the
American Convention provides as a requirement in order for a petition to
be admitted that it must be "lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment".
The State declares that the petitioners presented themselves to
the Commission within the period fixed in the forenamed provision.
Accordingly, the Commission concludes that the petition was
lodged within the six-month period provided in Article 46(1)(b) of the
Duplication of proceedings and res
Articles 46(1)(c) and 47(d), respectively, of the Convention provide as
admissibility requirements that the
subject of the petition or communication not be pending in another
international proceeding for settlement, nor be substantially
the same as one previously studied by the Commission or by another
international organization. The Argentine State
expressly said that the requirement set out in Article 46(1)(c) had been
met. The Commission
considers the subject of the petition is not the
same as one previously studied by the Commission or by another
Therefore, the Commission concludes that the requirements set out
in Articles 46(1)(c) and 47(d) of the Convention have been met.
Characterization of the alleged facts
Article 47(b) of the Convention provides that the Commission shall
consider inadmissible any petition that “does not state facts that tend to establish a violation of the rights
guaranteed” by the Convention. The Commission considers that,
in principle, the allegations presented by the petitioners refer to
facts that tend to establish
possible violations of the rights guaranteed in Articles 1, 8,
23, 24, and 25 of the Convention. Consequently,
the Commission concludes that the requirement contained in Article 47
(b) of the American Convention has been met.
31. The Commission concludes that it
is competent to take cognizance of this case and that the petition is
admissible in accordance with Articles 46 and 47 of the Convention.
Based on the foregoing de
facto and de jure arguments and without prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the instant case admissible in respect of the alleged
violations of Articles 1, 8, 23, 24, and 25 of the Convention.
To notify the parties of this decision.
To continue to examine the merits of the case;
To place itself at the disposal of the parties with
a view to reaching a friendly settlement on the basis of respect for the
human rights enshrined in the Convention and to invite the
parties to give their opinion on that possibility, and
5. To publish this decision and include it in the Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of San José, Costa Rica, on this the 19th day of November of 1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice Chairman; Claudio Grossman, Second Vice Chairman; Commission Members: Alvaro Tirado Mejía, Jean Joseph Exumé and Carlos Ayala Corao.
The petitioners cite Articles 1, 5, and 121 of the Constitution.
The petitioners cite the experts on constitutional law, Daniel
Sabsay and Germán Bidart Campos.
The State cites the daily minutes of the sessions of the Chamber of
Deputies of December 22, 1994 and the daily minutes of the sessions
of the Senate of December 15 and 22, 1994.
Clause 26 of former Article 115 –
now Article 119.
The Supreme Court of Justice maintained, "that makes it
possible to rule out possible unfamiliarity with provincial
autonomies” (legal reason 12, vote of Justices Nazareno, Moliné O´Connor,
The State cites as precedents the decisions of November 30, 1995 in
the Province of El Chaco itself and of February 14, 1996 in the
Province of Santiago del Estero.
The State cites legal
8, 10, 12, 13, 14, and 18 of the vote of Justices Nazareno, Moliné
O´Connor and López in the judgement of the Supreme Court of
The State cites legal reasons 18 of the majority vote, and 17 of the
vote of Justices Nazareno,
Moliné O´Connor and López.