... continued

25.             They also maintain that in examining the reasonableness of the duration of cases, the fact that the matter under discussion is social security should also be taken into consideration.[26]  Given their age, retirees and/or pensioners comprise one of society’s most vulnerable groups, which intensifies their reliance on public assistance.  If proceedings are unduly long and judicial remedies not effective, it may be impossible for them to enjoy the rights to social security, health, and physical and mental integrity.  Courts should be all the more diligent when dealing with social security, as any delay may render the proceedings futile.

26.             The petitioners hold that many court judgments have gone unenforced since Law 24.463 took effect, and that actions of ANSES aim to prolong legal proceedings indefinitely.[27] The petitioners maintain that certain provisions of Law 24.463 are incompatible with Articles 8 and 25 of the Convention.  They state that Articles 5 and 7 of that law have led to a system with an unchanging level of benefits, which have been frozen since 1 April 1991 with the one exception of a 3.28% increase granted in September 1993.  They also claim that Articles 16 and 17 grant the State powers and procedural prerogatives such as the capacity to allege a limitation on monies and to use expert testimony prepared by the Office of the Auditor General, something no other debtor in Argentina can do to become exempt from complying with a court order.  They point out that these special powers can even be used to impede progress in adjustment of pension levels.[28]  Articles 16 and 22 taken together allow for postponement in compliance with or enforcement of court judgments providing for adjustments to the benefits of retirees on the basis of a lack of budgetary resources.[29] 

27.             They add that Articles 22 and 23 of Law 24.464 proscribe enforcement, fines and other sanctions against civil servants who do not comply with court orders, as well as any other action that could compel the state to comply with judgments. Moreover, these articles keep judges from setting deadlines for compliance with the judgment.[30] Specifically, Article 23 deprives judges of the capacity to make their own judgments effective.  This goes against the balance of powers and the stability of court actions.  This also explains why there are unreasonable delays in total or partial compliance with final court judgments, obligating everyone involved to litigate ad infinitum 

28.             The petitioners maintain that Law 3.952 of 1902, whose application is supplemental, stipulates that any judgments against the state shall be merely declarative in nature and limited to the recognition of the right in question.  The petitioners argue that the doctrine of the Rule of Law supersedes such discretionary criteria typical of state absolutism.  The judicial is the only branch of government that the constitution recognizes as having the power to interpret law and determine if emergency measures taken to limit compliance with court judgments regarding adjustment to benefits due retirees and pensioners are reasonable or not. Neither the legislative nor the executive branch is empowered to prohibit judges from establishing deadlines for compliance with their judgments, and all the more so when the goal is not good administration but eternal delay in compliance with decisions favorable to retirees and pensioners.  They hold that budgetary limitations are being used as an obstacle to truly effective remedy,[31] and therefore violation of Article 25 of the Convention is more closely linked to enforcement of judgments than to determination of rights. 

29.             They claim that the State cannot claim a “state of emergency in the pension system” with the objective of restricting the rights of retirees, especially when they give no specific explanation of the economic crisis, the gravity of the emergency, the means being used to resolve it, or the time the exceptions will remain in effect (as required by Article 27 of the Convention).  Nor has the State informed the other States Parties of the suspension of rights due to an alleged emergency.  Even if one proceeds on the supposition that the arguments of the State are acceptable, still the full effectiveness of legal guarantees and of remedies must be maintained as such rights cannot be suspended or restricted.[32]  

30.             The petitioners also claim that the right to social security was violated in its relation to the duty to work and contribute to the social security system. All the petitioning retirees contributed to the system for years and Article 14(bis) of the Argentine Constitution guarantees an economically and financially independent retirement system with adjustable pensions.  At various time the petitioners have stressed that “The intention is not to question the policies adopted by the State or to debate the measures it has implemented. The petitioners are not asking the Commission to set the amount of pensions or comment on the system’s structure or the general situation of retirees.”[33] 

31.             In regard to the other rights mentioned, the petitioners maintain that a pension is part of one’s property and thus covered by the right to property.  They say that pensions have dwindled to the point of becoming meaningless, due to their growing outdatedness[34] and unwarranted delays in enforcing judgments recognizing this right. Moreover, the retirement system violates the right to equal protection of the law since certain groups of retirees, such as former legislators, judges, members of the armed forces and ministers can be considered privileged.[35] They also mention “pensions of privilege” and “pensions to be thankful for.”  The petitioners hold that their rights to health, well-being and life are being affected, as their only source of income–and thus of purchasing food and surviving–is being threatened. And since most of them do not have access to any other source of income, they cannot afford basic services and needed medicine.  They go on to point out that since the implementation of the economic plan in 1991, the mortality rate of the elderly has been on the rise.  

The State 

32.             The State has argued that the IACHR should declare the case inadmissible for the reasons outlined upon continuation.  The State claims that pension levels “Can be considered reasonable when compared to average income in the country.”  It counters arguments that retirees are being left defenseless and that they are being denied access to the courts.  The State also defends the procedural system put in place by law, saying that ANSES was previously rendered defenseless and that the situation created by awards contained in judgments had put the system “in a virtual state of collapse.”  The system in place before the 1995 reforms provided for appeal to the corresponding judicial body in the case of an administrative claim being rejected, in accordance with Articles 8 and 9 of Law 24.473.  The Law on Social Solidarity does not provide for an initial administrative stage to be regulated by the Law on Administrative Procedures (Law 19.549).  The beneficiary is only required to file a claim and the administrating body then has to say whether it admits it totally, in part or not at all.[36] 

33.             The State maintains that the measures in question are measures of public order, as they were born of necessity and instituted for the public good.  It cites CSJN jurisprudence that establishes that no one can possess an acquired right that goes against public order.  Moreover, it cites the reservation Argentina placed in Article 21 when it ratified the Convention.[37] 

34.             The State refers to CSJN jurisprudence and doctrine, maintaining that Law 24.463 is constitutional.  The time limit stipulated in Article 22 is based on situations outside the control of the State and all increases in pension payments are subject to an increase in the system’s resources.  The State’s actions were and are aimed at insuring the continuation of the right to a pension in direct relation to the economic resources generated in Argentina within the framework of general economic stability and the principles of collective solidarity governing any social security system.  Within limits established impartially by economic recovery and growth, the State promoted measures to achieve the full realization of human rights, in line with Article 26 of the Convention. 

35.             The onset of hyperinflation in 1989 brought the social security system to the brink of collapse.  Later on the State was taken unawares by the great number of judgments with which it was simply impossible to comply and which, along with other cases, tore up standing law.  That is the background to a social security emergency being declared in the early 1990s.  An effort was made to strike a balance in the distribution of scarce resources with the goal of guaranteeing the right to social security in line with available resources.  This is why judgments against the State are not immediately enforceable. Instead, they convey an order to the Legislature to include the credit in the annual budget.  The basis of this is a universal public law principle, namely the unenforceability of judgments, which was incorporated into Argentine law early last century through Law 3.952, making such judgments merely declarative.  The State maintains that the pension system is a major element of its economic policy, as shown by the fact that social security represents 40% of national budgetary expenditures. 

36.             The State maintains that the right to property is not affected by its actions. To the contrary, it claims to have preserved property on behalf of all beneficiaries and to have assured that they will continue to be paid.  The State holds that it has not gone against the public order, as it is not a direct debtor without limits on what it owes within the system.  It is the administrator and as such it tries to assure that the right to social security is conserved and maintained effective, and it can decide to postpone judgments that affect the fund until the financial situation has improved.  Awards made to litigants have not been cancelled, but only suspended for the reasons explained.  The State supports social services with additional income from privatizations, taxes and Treasury contributions.  By establishing a list indicating in what order awards will be paid, it lends a legal order to the situation and sets priorities for settling equally valid claims on the same funds. In regard to paying with bonds, the State claims that it has not discriminated against retirees.  To the contrary, it holds that it has granted them exemptions that other creditors have not received and that the debt to suppliers was paid in the same way as the debt to pensioners. 

37.             The legal battles afflicting the Social Security system have occurred in a context marked by an economic and social crisis and the State’s efforts to respond to it. Certain by-products of this situation were not understood by a number of pensioners, who instigated thousands of cases, overloading the labor courts charged with hearing them.  In response, Law 23.473 of 25 March 1987 created the Social Security courts, organized through the Appeals Chambers, which until March 1995 acted as courts of review for the administrative decisions of ANSES.  The procedure was unilateral and excluded the administration from participating, thereby eliminating the constitutional right to a defense in court.  It made it easy to formulate claims rooted in theory only, which were then validated in judgments.  But no attention was given to the financial health of the system as a whole, possible socio-economic repercussions, or the specific circumstances related to the aims of the plaintiff.  Nine members comprise the CSJN.  A small support staff is in charge of the numerous requests its receives for information in its diverse areas of competence.  In 1995, the pensioners involved in such legal cases initiated proceedings to have Law 24.463 declared unconstitutional.  These proceedings, begun in May 1995, lasted more than a year.  Taking this into account, the State cannot be said to have delayed matters deliberately. 

38.             The State maintains that guarantees in the realm of social security are related to a program and are not based on regulations.[38] The automatic adjustment mechanism is not rooted in the constitution and must take into account the financial health of the system, which is something the legislature must take under study.  It is necessary to try to balance the interests of the majority of pensioners who do not litigate (90%) with those of the minority who do (10%).  The overall health of the system has been given priority because nontransferable and irrecusable rights to the same patrimony are involved. The State does not cast doubt on the tight situation of pensioners receiving the minimum, but that situation was not brought about by the government.  Rather it is the result of an unfair system based on a corporatist way of thinking that the State is trying to overcome. But change will require time, resources and deep cultural transformation.  The State believes that complainants’ objections are clearly ideological in nature and that the complaints before the IACHR are but isolated acts and not a reflection of the general situation in Argentina.  In its last submission, the State describes the current state of affairs of the administrative complaints and court cases involving petitioners.  It holds that in no case is there a violation. If there were delays previously, that was due to a severe crisis in granting and carrying out hearings.  Currently, the State maintains, this is but an abstract question outside the Commission’s competence.

IV.       ANALYSIS 

A.        Ratione loci, ratione personae, ratione temporis and ratione materiae competence of the Commission 

39.             The Commission has competence to examine the case.  The State is a party to the Convention and deposited its instrument of ratification with the General Secretariat of the Organization of American States on 5 September 1984.  Events related to the petitioners’ complaints occurred after said ratification with prejudice to the persons identified in Table I above, as required by Article 44 of the Convention in combination with Article 1(2) of the same.  The petition was lodged by the petitioners identified in Table I above, and in accordance with Article 44 of the Convention, they are persons qualified to lodge petitions with the Commission. 

40.             In regard to ratione materiae, the IACHR notes that the original petitioners maintained that the State violated their rights to a fair trial (Article 8), to property (Article 21) and to effective remedy (Article 25(2)(c), and that it also violated the obligation to respect the rights recognized in the Convention (Article 1(1) and to take measures to give them effect (Article 2).  They also held that the State violated the following rights recognized in the American Declaration: to life (Article I), to the preservation of health and to well-being (Article XI), to a fair trial (Article XVIII), to property (Article XXIII) and to social security in relation with the duty to work and contribute to social security (Articles XVI, XXXV and XXXVII).  Subsequent petitions joined to this case (see Paragraph 7 above) fundamentally laid claim to the same rights as the original petitioners, while in some no article of the Convention was invoked.  Thus the Commission deems it correct and appropriate to examine all the petitions in light of the rights claimed by the original petitioners. 

41.             The Commission deems that once the Convention has entered into force in a State, it and not the Declaration becomes the specific source of law to be applied by the Commission,[39] as long as the petition alleges violation of substantially identical rights set forth in both instruments[40] and a continuing situation is not involved.[41]  In the case under consideration, the parts of the Declaration and the Convention invoked by the petitions treat similar matters. The rights to a fair trial (Article XVIII) and to private property (Article XXIII) enshrined in the Declaration are subsumed in the provisions of Articles 8 and 21 of the Convention.  Thus, the Commission will refer only to the norms of the Convention when addressing the above-mentioned violations of the Declaration.  In regard to the rights of equal protection of the law (Article 24) and to effective remedy (Article 25(2)(c)), and to the obligation of the State to respect rights (Article 1(1)) and to adopt measures to give them effect (Article 2), the petitioners did not cite any parallel rule contained in the Declaration. 

42.             The rights to the preservation of health and to well-being (Article XI) and to social security in relation with the duty to work and contribute to social security (Articles XVI, XXXV and XXXVII) contained in the Declaration are not specifically protected by the Convention.  Nonetheless, the Commission esteems that this circumstance doe not exclude its competence over the subject matter, as Article 29(d) provides that “(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.” Thus the Commission will also examine the petitioners’ allegations on violations of the Declaration. 

B.       Other Admissibility Requirements 

a.       Exhaustion of domestic remedies 

43.      Article 46(1)(a) of the Convention establishes that admission of a petition shall be subject to the requirement “that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.” In this case, the IACHR esteems that the petitioners have charged that violations of Articles 1, 2, 21 and 24 of the Convention and of Articles XI, XVI, XXXV, and XXXVII of the Declaration are ancillary to violation of Articles 8 and 25 of the Convention. The situations set out by the various petitioners will now be examined. 

i.        Petitions with procedural delays still awaiting final judgment 

44.     In regard to the exhaustion of domestic remedies, the petitioners listed in Table 2 above claim that there were unwarranted delays on the part of the competent bodies in rendering final judgment on the rights and obligations involved in their cases.  Eduardo Agro points to a delay of more than six years before the CSJN.  José Heribe Agrofolio explains that his case has been before the CSS for more than three years.  Pedro S. Ambrosetti indicates that his case has been before the CSS for more than five years.  Enrique Domingo Amodeo points out that his case has been before the CSS for more than four years. And Amancio Modesto Pafundi indicates that more than five years have gone by since he initiated his administrative complaint. 

45.             In accordance with Article 46(2)(c) of the Convention, the rule on exhaustion of domestic remedies contained in Article 46(1)(a) shall not be applied when “There has been unwarranted delay in rendering a final judgment under the aforementioned remedies.” The petitioners claim that the date the administrative complaint was lodged should serve as the starting point for measuring delay. The State has said that the system in place before the 1995 reforms, in accordance with Articles 8 and 9 of Law 23.473, provided for appeal to the corresponding judicial body in the case of the administrative complaint being rejected. In the procedures it sets out, the Law on Social Solidarity does not provide for an initial administrative stage regulated by the Law on Administrative Procedures (Law No. 19.549). The beneficiary is simply required to lodge a claim and without further ado the administrating body is supposed to say if it will admit it fully, partially or not at all.[42] 

46.             The Commission agrees with the petitioners that when examining the exception to the rule on exhaustion of domestic remedies set out in Article 46(2)(c), the date to be used as a starting point should be the date the administrative complaint was lodged. According to the notion of an overall analysis of the procedure,[43] a case on rights, be it civil or administrative in nature, may be examined in the first instance by a body that is not a court, as long as the case can be presented in a reasonable period of time before a court with competence to try it in regard to both facts and law.[44] In this case the IACHR notes that the State has pointed to the fact that it was mandatory to lodge the complaint with the administrative body, both under the system in place before the 1995 reform of Law 24.463 and after.  Once the administrative body has determined if payment is in order and, if so, how much is to be paid, the petitioners could contest the decision before the corresponding chambers, which without a doubt are courts in the sense set out in Article 8(1) of the Convention.  Thus the Commission concludes that in this case the administrative stage of proceeding shall also be taken into account when calculating the time period.[45] 

47.             The State has not denied that there have been delays; it has only brought forth various reasons why the delays have been reasonable. Neither does the State say that domestic remedies have not been exhausted. In consequence, the Commission considers that the  State  has  tacitly  renounced  use  of  the  rule  provided  for  in Article  46(1)(a)  of  the Convention.[46] As a consequence, it is not up to the petitioners to show that available remedies have been exhausted or that one or more of the exceptions provided for in Article 46(2) are applicable.[47] Although not all petitioners have indicated the date on which they originally lodged their complaint, the IACHR esteems that the delays pointed to in various stages of the proceedings can be considered sufficient to show that delay has been unwarranted, as required in Article 46(2)(c) of the Convention. 

48.             Without detriment to what has just been stated, the Commission notes that in the cases referred to, delays have been from approximately three to six years without a final decision being rendered. The Commission esteems that this constitutes prima facie an unwarranted delay. In consequence, the exception provided for in Article 46(2)(c) of the Convention is applicable and the requirement to exhaust domestic remedies set out in Article 46(1)(a) shall not be applied. 

ii.       Cases for which a final judgment was rendered but only after delay 

49.             Some of the petitioners listed in Table 3 above maintained that that they faced unwarranted delays in the processing of their cases before eventually obtaining a final judgment.  Vittorio Orsi said that six years passed from the time he lodged an administrative complaint in 1992 until the CSJN pronounced judgment in 1999.  Amilcar Menéndez cited a delay of more than 3 years from the beginning of his administrative complaint in 1988 until the CSS rendered a final judgment on it in 1992.  Angela Otero pointed to a delay of four years from the time the CSS pronounced judgment in 1994 until the CSJN handed down its final judgment in 1999.  Pascual Piscitelli reported a four-year delay from the time of the CSS judgment in 1994 until the CSJN judgment of 1999.  Eduardo A. Rodriguez Arias cited a 7-year delay from the time he lodged an administrative complaint in 1991 until the CSJN rendered final judgment in 1998. 

50.             The petitioners listed in Table 4 claim to have faced the same circumstances. Juan Manuel Caride waited six years for the CSJN to issue a decision after initiating an administrative complaint in 1988.  Antonio Carmona waited 7 years from the time he lodged an administrative complaint in 1986 until the CSS rendered judgment in 1994.  And Enrique José Tudor waited seven years from the time he initiated an administrative complaint in 1990 until the CSJN issued its judgment in 1997. 

51.             The Commission notes that here the State does not claim non-exhaustion of domestic remedies.  In order to see if domestic remedies have indeed been exhausted in these cases, the principles formulated above (see paragraph 46) must be followed.  The IACHR considers that the requirements of Article 46(1)(a) of the Convention have been satisfied, both in regard to claims of delay in the determination of their rights in conformity with the provisions of Article 8(1) and to final judgment. All internal remedies related to the other rights invoked by the petitioners have been exhausted. 

iii.      Cases for which a final judgment exists but has not been enforced due to a priority list 

52.             The petitioners listed in Table 3 above have said that, in spite of having received a final judgment in their favor, enforcement has been delayed because their cases have been placed on a priority list.  Daniel Acevedo maintains that a final judgment was issued in his case in February 1999, 1 year and 10 months ago.  Amilcar Menéndez cites a delay of 8 years since he got a final judgment in 1992.  Angel Amadeo Chañaha says his final judgment was rendered in 1994, more than six years ago.  Pascual Piscitelli, Vittorio Orsi, Angela Otero and María Elena Solari all cite delays of more than a year as their judgments were pronounced in 1999.  And Eduardo A. Rodriguez Arias’ judgment was issued in 1998 and has not yet been enforced. 

53.             The Commission notes that here the State does not claim non-exhaustion of domestic remedies in regard to the petitioners under consideration. The IACHR here reiterates the principles enunciated in Paragraph 46 above.  The IACHR esteems that with the rendering of final judgments determining their rights and obligations, the petitioners have satisfied the requirements of Article 46(1)(a) of the Convention. In regard to delays in enforcement of the judgments, the IACHR notes that the petitioners complained about, inter alia, the application of Law 24.463 that limits the power of judges to enforce judgments in this area (see Paragraph 26 above).  The State does not deny that enforcement has been postponed. It only mentions considerations of timing and reasonableness. 

54.             Here the Commission must confirm its doctrine that “Failure to enforce a final judgment is an on-going violation by States that persists as an infraction of Article 25 of the Convention.”[48] Article 46(2)(a) of the Convention establishes an exception to non-exhaustion of domestic remedies when “The domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated.” The Commission thus concludes that in regard to the petitioners listed in Table 3 above, the rule on exhaustion of domestic remedies shall not be applied in relation to violation of Article 25 of the Convention. 

iv.      Cases in which the judgment has been enforced but with delay or inappropriately 

55.             The petitioners listed in Table 5 above stated that their judgments had been enforced, but only after delays.  Moreover, they maintain that the judgments were effectively a confiscation of their property and as a result they have initiated further proceedings in Argentina.  Roberto Balciunas stated that judgment on his case was pronounced in 1993, but enforced only six years later in 1999.  Moreover, it was inappropriately enforced forcing him to lodge an administrative appeal that is still pending judgment.  Juan Manuel Rodríguez pointed to a wait of more than four years from the time judgment was pronounced on his case in 1986 until it was enforced in 1990.  Moreover, it was inappropriately enforced causing him to lodge an administrative appeal that was rejected.  Juan Manuel Caride complained of a delay of more than four years from the time his case was judged in 1994 until that judgment was enforced in 1998.  He also alleges that enforcement was inappropriate.  He again went before the courts in an attempt to obtain the full amount indicated in the judgment.  A decision is still pending.  Enrique José Tudor complained of a delay of more than two years from the time judgment was pronounced in 1997 until it was enforced in 1999.  He adds that enforcement was inappropriate and as a result he filed another suit demanding the full amount stipulated in the judgment.  That case is still pending.  Antonio Carmona complained that his judgment was inappropriately enforced in 1994. He filed for amparo in 1997 and was granted it on 6 May 1998, but no action to correct the situation has been taken. 

56.             The petitioners have pointed out that they have had to go before other instances to seek proper enforcement of the judgments obtained before ANSES, the administrative body charged with payment.  These appeals must also be taken into account to the extent that their outcome influences the success of litigation pursued before ordinary jurisdictions.  The proceeding and appeals that the petitioners have had to pursue before ANSES determine the amount they will receive and when they will receive it. The State has not claimed non-exhaustion of domestic remedies.  Rather it has stated that the delays are justified in the context of the emergency facing the social security system, with no reference made to any of the specific cases lodged by the petitioners.  Here the IACHR again esteems that the principles set forth in Paragraph 46 above are applicable. 

57.             With no detriment to the above, in regard to cases in which the petitioner has made an administrative or judicial appeal based on the way the judgment was enforced and on which judgment has been pronounced, such as the cases of Juan Manuel Rodríguez and Antonio Carmona, the rule on exhaustion of domestic remedies as provided for in Article 46(1)(a) of the Convention shall be applied.  The IACHR esteems that in these cases the principle set forth in Paragraph 54, that “Failure to enforce a final judgment is an on-going violation by States that persists as an infraction of Article 25 of the Convention,” is applicable.  In the Roberto Malciunas, Juan Manuel Caride and Enrique José Tudor cases, the exception to said rule as provided for in Article 46(2)(c) shall be applied, as there is prima facie indication of unwarranted delay in rendering judgment on the appeals. 

b.       Timeliness 

58.             Article 46(1)(b) of the Convention stipulates that for a petition to be admissible 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.” This six-month rule is always applied when a final judgment has been rendered.  According to Article 46(2)(c), the time period requirement shall not be applied when “There has been unwarranted delay in rendering a final judgment under the aforementioned remedies.” 

59.             In regard to the petitioners listed in Table 2, the Commission has reached the conclusion that the exception provided for in Article 46(2)(c) is relevant as there is prima facie indication of unwarranted delay in rendering final judgment (see Paragraph 47 above).  Given the circumstances studied and in accordance with the provisions of Article 46(2)(c) of the Convention, the rule on the period for filing is not applicable. 

60.          The petitioners listed in Table 3 state that final judgment has been rendered in their cases. The State has not claimed non-compliance with the rule on the deadline for lodging a complaint. In regard to these petitioners, the IACHR has reached the conclusion that the exception to the rule on exhaustion of domestic remedies as provided for in Article 46(1)(a) of the Convention (see paragraphs 53 and 54 above) is applicable. The Commission thus ratifies its doctrine that “Failure to enforce a final judgment is an on-going violation by States that persists as an infraction of Article 25 of the Convention. Therefore, in such cases, the requirement regarding the deadline for lodging a petition, set forth in Article 46(1)(b) of the American Convention, is not applicable.”[49] Thus, the requirement on the deadline for lodging a petition is not applicable in this instance, in which the IACHR has been asked to consider on-going non-compliance with judgments rendered by competent judicial bodies. 

61.          In the cases listed in Table 5, the petitioners did exhaust domestic remedies. They appealed the way in which judgments were enforced. Final judgment has been rendered in some cases and in others it has not (see Paragraph 57 above).  The State has not claimed non-compliance with the rule on the deadline for lodging a complaint.[50] Given the specific circumstances under consideration in this instance, the Commission esteems that for those cases in which a final judgment has been rendered, the deadline as provided for in Article 46(1)(b) has been met. For those cases in which no final judgment has been rendered, the exception provided for in Article 46(2)(c) of the Convention is applicable. 

c.       Duplication of procedures and res judicata 

62.      Article 46(1)(c) of the Convention, taken in conjunction with Article 39(2) of the IACHR Rules of Procedure and Article 47(d) of the Convention, establishes that a petition is admissible only if the subject of the petition or communication is not pending in another international proceeding for settlement and that it is not substantially the same as one previously studied by the Commission or by another international organization. The Commission notes that the petitioners have presented final comments of the UN Economic, Social and Cultural Rights Committee that are related to the subject of this case. Those comments include the opinion that “Law 24.463… allows the government to reduce and even not pay pensions by invoking economic hardship.”[51] The State has said nothing regarding these comments and whether they emanate from an “international proceeding for settlement”. 

63.          The IACHR notes that the above-mentioned committee made its comments in the framework of periodic reports given by Argentina regarding compliance with the provisions of the International Covenant of Economic, Social and Cultural Rights.  No examination of individual cases was made for purposes of judgment.  The Commission deems that Article 47(d) and “Article 46(1)(c) impl(y) the actual existence of a mechanism whereby the violation denounced can be effectively resolved between the petitioner and the authorities of the State or, failing that, the proceeding instituted can lead to a decision that ends the litigation and/or gives other bodies jurisdiction.”[52]  Along these same lines, “The procedure in question must be equivalent to that set forth for the processing of individual petitions in the inter-American system.”[53] 

64.          On the basis of these principles, the IACHR deems that the subject of each and every of the petitions herein considered has not been examined in the framework of  “another international proceeding for settlement” in the sense meant in Article 47(d) of the Convention.[54] Moreover, the Commission has not received any information indicating that the subject of this petition is pending in another international procedure for settlement. Therefore, the Commission deems that the requirements set out in Articles 46(1)(c) and 47(d) of the Convention have been satisfied and the petition is admissible. 

d.        Grounds of the Petitions 

65.      Article 41(c) of the Commission’s Rules of Procedure stipulates that the Commission shall declare inadmissible any petition that is manifestly groundless on the basis of the statement by the petitioner himself or the government. Article 47(b) of the Convention establishes that any petition that “does not state facts that tend to establish a violation of the rights guaranteed by this Convention” shall be declared inadmissible. In the case under consideration, the petitioners claim that their rights to judicial guarantees and to effective judicial remedy as provided for in Articles 8 and 25(2)(c) of the Convention have been directly violated. From that fact flows the subsidiary violation of the other rights and obligations they mention–the rights to private property and to equal protection before the law (Articles 21 and 24 of the Convention), and to health and well-being and to social security, in relation to the obligation to work and contribute to social security (Articles XI, XVI, XXXV and XXXVII of the Declaration); the obligation of states to respect rights and to adopt measures to give effect to those rights (Articles 1(1) and 2 of the Convention. Having examined the information provided by the parties, the Commission deems that the allegations are not clearly without grounds and they could characterize violations of the above-mentioned provisions. Therefore, the Commission concludes that the petition is not inadmissible under Articles 47(c) and 47(d) of the Convention. 

V.          CONCLUSIONS 

66.          In regard to the petitions of Acevedo, Daniel; Agro, Eduardo; Agrofolio, José Heribe; Ambrossetti, Pedro S.; Amodeo, Enrique Domingo; Balciunas, Robert; Caride, Juan Manuel; Carmona, Antonio; Chañaha, Angel Amadeo; Menéndez, Amilcar; Orsi, Vittorio; Otero, Angela; Pafundi, Amancio Modesto; Piscitelli, Pascual; Rodríguez Arias, Eduardo, A.; Solari, María Elena, and Tudor, Enrique José the Commission concludes that they comply with the requirements set out in Articles 46 and 47 of the Convention and therefore are admissible. 

67.          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 TO:  

1.                 Declare admissible the petitions of Acevedo, Daniel; Agro, Eduardo; Agrofolio, José Heribe; Ambrossetti, Pedro S.; Amodeo, Enrique Domingo; Balciunas, Robert; Caride Juan Manuel; Carmona, Antonio; Chañaha, Angel Amadeo; Menéndez, Amilcar; Orsi, Vittorio; Otero, Angela; Pafundi, Amancio Modesto; Piscitelli, Pascual; Rodríguez Arias, Eduardo, A; Solari, María Elena; y Tudor, Enrique José in reference to alleged violations of the rights provided for in Articles 1(1), 2, 8(1), 21, 24 and 25(2)(c) of the Convention and of the rights enshrined in Article XI and treated jointly in Articles XVI, XXXV, and XXXVII of the Declaration. 

2.                 Notify the parties of this decision. 

3.                 Continue with the analysis of the merits of the case. 

4.                 Publish this decision and include it in its Annual Report to the OAS General Assembly. 

Done and signed at the headquarters of the Inter-American Commission on Human Rights, Washington, D.C., on the 19th day of January 2001. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners:  Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.

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