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REPORT
Nº 56/00 I.
SUMMARY
1.
On September 29, 1994, Juan José López and the Córdoba Press
Trade Union Group [Círculo Sindical
de la Prensa de Córdoba] (hereinafter "the petitioners")
submitted a petition to the Inter-American Commission on Human Rights
(hereinafter "the Commission") denouncing violation by the
Republic of Argentina (hereinafter "Argentina" or "the
State") of the right of Juan José López, mentioned above,
(hereinafter "the alleged victim") to freedom of thought and
expression enshrined in Article 13 of the American Convention on Human
Rights (hereinafter "the Convention").
2.
The alleged victim established a professional relationship with LRA
7- Radio Nacional de Córdoba (hereinafter
"Radio Nacional,") in January 1986, which continued without
interruption until July 1990. The
parties describe this relationship differently from a legal standpoint.
The alleged victim was elected to the position of alternate member of the
Córdoba Press Trade Union Group (hereinafter "CISPREN") and,
while performing duties in that capacity, was denied work by Radio
Nacional. No reason was
given for this action. Consequently,
the petitioners took legal action with a view to his reinstatement.
3.
Federal Court No. 2 of Córdoba ruled that the request should be
granted and ordered the reinstatement of the alleged victim in his
position. In May 1993,
Division "A" of the Federal Court of Appeals of the Fourth
Judicial District overturned the first instance decision, which had been
appealed. The Supreme Court
rejected the appeal for special remedy filed by the petitioners, without
reviewing the merits of the case.
4.
Without prejudging the merits, the Commission concludes that this
case is admissible with respect to the alleged violation of the right to
freedom of thought and expression enshrined in Article 13 of the
Convention. Furthermore, the
possibility is being left open to interpret and apply the provisions of
the Convention related to judicial guarantees and protection (Articles
8(1) and 25), freedom of association (Article 16), and equality before the
law (Article 24), when the merits of the case are being analyzed.
II.
PROCESSING BY THE COMMISSION
5.
The Commission received the petition on September 29, 1994, and
acknowledged receipt thereof on October 24.
It was forwarded to the State with a 90-day period being provided
for a response.
6.
On November 28, 1994, the Commission received additional
information from the petitioners, and acknowledged receipt thereof on
December 5, 1994.
7.
On January 3, 1995, the State requested an extension of the
deadline for providing a response. On
January 12, 1995, the Commission acknowledged receipt of this request and
extended the deadline to February 28.
8.
On March 2, 1995, the State requested another extension, and on
March 13, the Commission granted it an additional 45 days.
9.
The State responded to the petition on May 22, 1995, and the
Commission acknowledged receipt of this response and forwarded it to the
petitioners on May 31.
10.
The Commission received additional information from the petitioners
on August 14, 1995, and acknowledged receipt thereof.
This information was forwarded to the State on August 17.
11.
On November 29, 1995, the State provided the Commission with
additional information. Acknowledgment of receipt was provided the next day.
12.
On March 25, 1998, the Commission received correspondence from the
petitioners expressing their interest in the continuation of processing of
the case. The Commission
acknowledged receipt of this correspondence on April 14, 1998.
III.
POSITIONS OF THE PARTIES
13.
Based on the correspondence from the parties to the Commission,
there is no dispute between them regarding the description of most of the
facts related to this case. Consequently,
the crux of the case lies in the conflicting accounts of the description
and substance of the professional relationship between the alleged victim
and Radio Nacional.
a.
Position of the petitioners
The facts
14.
The alleged victim established an ongoing relationship with LRA 7 -
Radio Nacional de Córdoba
(hereinafter Radio Nacional) in
January 1986, which continued without interruption until July 1990. Within the context of that relationship, he participated in a
variety of journalism programs, which involved the preparation of notes,
reports, commentaries, and narrations, among others. The petitioners maintain that "[the legal relationship
between the alleged victim and Radio
Nacional] "faded" (sic) on September 1, 1986, with the
"liquidation" (sic) of his respective payments, based on an
initial "contract" for journalistic work, the first in a series,
copies of which were never provided to the party appearing [the alleged
victim]."
15.
The alleged victim was a member of the Córdoba Press Trade Union
Group and "[was elected]
alternate member of its governing board, to serve from December 16, 1988
to December 15, 1990. The
defendant, [Radio Nacional] was
informed of this appointment by secret ballot on December 15, 1988."
16.
They claim that: From
July 2, 1990 [that is, while the alleged victim was still serving as the
union representative for journalists in Córdoba, the claimant, Mr. López
[the alleged victim] was relieved of his duties.
No reason was given for this action.
Radio Nacional apparently
decided to reduce the number of journalism and musical programs produced
[locally] […], and to rely directly on the federal capital for them.
From that time, most of the programs started to be transmitted from Buenos
Aires (18 of the 24 hours).
17.
The alleged victim viewed the situation that had arisen with his
professional relationship as "injurious from an individual standpoint
and prejudicial to trade union freedom," and, for this reason, took
several steps aimed at reversing it, which included asking the radio
station "within a period of two days, to provide clarification with
regard to my employment status, to reinstate me in my position, and to
cease such conduct, failing which I will take legal action aimed at my
reinstatement, which did not rule out the possibility of adopting the
position, later on, that you bear sole responsibility for my
dismissal." CISPREN also
sent a letter to Radio Nacional
reminding it that the alleged victim was, at that time, holding a position
within the trade union and repeating the information that he had already
transmitted to it. These
letters were rejected by the local Director of Radio
Nacional. The intervention of lawmakers, political and trade union
leaders, officials, and others was also sought, but failed to produce
positive results.
18.
In light of those unsuccessful efforts, the alleged victim sent
another letter to Radio Nacional, dated August 3, 1990, noting the "persistence
(sic) refusal of [Radio Nacional]
to reinstate me as a professional journalist [despite the fact that I hold
an executive position in the local association of journalists] […] [for
this reason] I reserve the right to consider myself indirectly fired, and
as a result, entitled to compensation […]" and that he
would avail himself of the federal court system with the aim of
being reinstated in his position. CISPREN
sent Radio Nacional another letter to the same effect.
19.
Since this correspondence failed to produce results, the
petitioners instituted proceedings for infringement of trade union rights
and freedoms pursuant to Law 23,551 on Professional Associations, seeking
application of the guarantee of trade union stability, based on Article 14bis
of the Constitution of Argentina and Article 52 of the aforementioned law.
The objective of the proceedings instituted was the reinstatement
of the alleged victim, given his status as a trade union representative of
CISPREN and the restoration of trade union freedom.
On February 21, 1992, Federal Court No. 2 of Cordoba handed down a
decision regarding the proceedings for reinstatement instituted by the
petitioners, granting the request and ordering "the immediate
cessation of anti-trade union conduct and the reinstatement [of Mr. López]
in his position at least twenty days after this decision becomes
enforceable."
20.
A ruling with respect to the appeal filed by Radio
Nacional was handed down by Division "A" of the Federal
Court of Appeals of the Fourth Judicial District. This
court overturned the first instance decision, since it assessed the
evidence differently and held a different view regarding the legal nature
of the professional relationship between the alleged victim and Radio Nacional. The
decision of the first instance court held that an employment relationship
existed with a professional journalist, whereas, in its ruling on the
appeal, the Federal Court maintained that the relationship involved a
contract to provide work and did not meet the requirements for considering
him a professional journalist.
21.
The petitioners filed an appeal with the Supreme Court for special
remedy against the decision handed down by the Federal Court.
In their appeal, they maintained that "the second instance
ruling […] was limited to disproving the labor relationship of the
plaintiff, without analyzing the main injury outlined in the complaint:
the loss of employment of a member of the governing board, whose position
on the board had been communicated to the defendant a year and a half
prior to his separation, and was never challenged."[1] On February 22, 1994, the Supreme Court rejected the appeal
for special remedy filed by the petitioners without reviewing the merits
of the case or providing an exhaustive explanation of the basis for its
decision.
The points of law
22.
The petitioners maintain that the link that existed between the
alleged victim and his employer was a dependent employment relationship
and that the alleged victim "worked as a professional journalist
within a state context, that is, LRA 7 Radio
Nacional Córdoba, for a long period."
23.
They stress the fact that an employment relationship did exist,
which involved the regular performance of work related to professional
journalism. They add, with
respect to the enforcement of Law 12,908: The
requirements related to entry in the register and the granting of a
journalism membership card by the National Executive, as well as
registration in the retirement system in order to work as and be
considered a journalist are at odds with freedom of expression and of the
press enshrined in the laws and Constitution of Argentina and in Article
13 of the American Convention on Human Rights, which cover freedom of
thought and expression.
b.
Position of the State
24.
It supports the argument advanced by Radio
Nacional that the relationship with the alleged victim was one
involving a contract to provide work. 25. With regard to
the professional status resulting from this relationship, it maintains
that he "was not registered in the retirement and pension system for
journalists, nor was he considered to have such status." 26. It maintains
that the severing of ties between the alleged victim and Radio
Nacional, the failure to recognize his status as a professional
journalist, and the enforcement of Law 12,908 with regard to the alleged
victim do not in any way constitute a violation of Article 13 of the
Convention on freedom of expression. 27. It argues that
the alleged victim failed to meet the requirements set forth in law 12,908
approving decree 7618/44, which in turn adopts the Statute applicable to
the Professional Journalist. The
contents of this provision that are relevant to this case will be
discussed in detail later on. 28. In support of
its position, it expresses its agreement with the arguments advanced in
the ruling of May 7, 1993 by Division "A" of the Federal Court
of Appeals of Córdoba, which overturned the decision of the court of
first instance in favor of the alleged victim. 29. It therefore
rejects the arguments of the petitioners and maintains that the nature of
the professional relationship with Radio
Nacional, which began in 1986 and continued without interruption until
July 2, 1990, was not an employment relationship involving the performance
of functions related to professional journalism by the alleged victim. IV.
ANALYSIS A.
Competence of the
Commission ratione personae, ratione
materiae, ratione temporis and ratione
loci
30.
The Commission is competent to review the case.
The acts denounced by the petitioners allegedly affect rights of
natural persons as a result of actions taken by Argentina, which occurred
within its territory after the date of deposit of its instrument of
ratification.[2]
B.
Other admissibility requirements of the petition a.
Exhaustion of domestic remedies 31. The petitioners
have exhausted domestic remedies, as evidenced by the decision handed down
by the Supreme Court with respect to the appeal for special remedy on
February 22, 1994, as reported by the State in its correspondence of May
22, 1995. b.
Period for lodging the petition 32. Notification of
the aforementioned decision of the Supreme Court was provided on March 16,
1994, and this date was used to compute the time period set forth in
Article 46(1)(b) of the Convention and Article 38 of the Regulations of
the Commission. The
Commission received the petition on September 29, 1994, but it was sent
from Córdoba, Argentina, prior to that date.
The petitioners have expressly asked the Commission "to
consider the petition to have been filed within the time frame and in the
manner required" and the State has not raised any objection to this.
Consequently, taking into consideration the distance, the
Commission declares that the requirement set forth in Articles 46(b) of
the Convention and 38 of the Regulations of the Commission have been met. c.
Duplication of proceedings and res
judicata 33. There is no
evidence to suggest that other proceedings in the international sphere are
pending with regard to the matter covered in the petition or that it
represents, from a substantive standpoint, a reproduction of another
appeal already examined by the Commission or other pertinent supranational
entity. Consequently, the
requirements set forth in Articles 46(1)(c) and 47(d) of the Convention
have been met. d.
Characterization of the alleged facts 34. In the view of
the Commission, confirmation of the veracity of the facts alleged by the
petitioner could lead to a finding of violation of rights protected under
the Convention. Consequently,
without prejudice to points related to the merits of the case, the
Commission holds the view that the requirements set forth in Articles
47(b) and (c) of the Convention have been met. 35. In its decision
on the merits, the Commission will also make a determination as to whether
it would be appropriate to interpret and apply the provisions of the
Convention pertaining to judicial guarantees
and protection (Articles 8(1) and 25), freedom of association (Article
16), and equality before the law (Article 24). V.
CONCLUSIONS 36. The Commission
concludes that it is competent to hear this case and that it is
admissible, pursuant to Articles 46 and 47 of the Convention. 37. Based on the
arguments of fact and of law outlined above, and, without prejudice to the
merits of the case, THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS
DECIDES:
1. Declare this case admissible with regard to the
alleged violation of the right to freedom of thought and expression
enshrined in Article 13 of the Convention and to allow for the possibility
of interpretation and application of the provisions of the Convention with
respect to judicial guarantees and protection (Articles 8(1) and 25),
freedom of association (Article 16), and equality before the law (Article
24), when the merits of the case are being analyzed. 2. Notify the parties of this decision. 3. Continue analysis of the merits of the case; and, 4. Publish this decision in its Annual Report to the
OAS General Assembly. Done and signed at the headquarters of the Inter-American Commission on Human Rights in Washington D.C., on this the 2nd day of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
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*
Dr. Juan Méndez, an Argentine national, did not participate in the
discussion of this case in accordance with Article 19(2)(a) of the
Commission’s Regulations. [1]
Bold and capital letters that appear in the original have been omitted. [2] Argentina deposited the instrument of ratification of the Convention at the General Secretariat of the Organization of American States on September 5, 1984. |