II.          PETITION OF MESSRS. MAXIMO BOMCHIL AND ALEJANDRO M. FERRARI

          7.          The petition of the persons mentioned above, dated August 8, 1986, complies with the requirements of form stipulated in Article 32.a of the Regulations of the Commission and related provisions of the Convention (Art. 46.d)/

8.                 In summary, the petition sets out the following:1

a.          That Law 23,187 violates fundamentally the freedom of association and further violates domestic legislation of Argentina regarding that right as well as the American Declaration of the Rights and Duties of Man, the Universal Declaration of Human Rights, and Convention 87 of the International Labour Organization (ILO);

b.          That the causa pretendi is that the Commission submit to the Inter-American Court of Human Rights (hereinafter called the Court) “the decision on the existence of the alleged violations, with the pertinent legal consequences” and that “in the hypothetical case that the Commission does not agree to permit the Court to intervene, the former (the Commission) should issue its opinion to the effect that such violations have occurred”;

c.          That everything set out in the petition “is formulated under sworn oath” and the documents attached are authentic;

d.          That attached is a copy of the appeal for protection filed with the Argentine Courts to request that Law 23,187 be declared unconstitutional, a copy of the official document (at the second instance) answering the allegation by the state and a copy of the allegation to the supreme Court of Justice on special appeal of the ruling by the Federal Chamber which overturned the ruling of the first instance court;

e.          That the petitioner is directly affected by the provisions of Law 23,187 since he acts professionally in the city of Buenos Aires and was enrolled on the register of the Supreme Court of Justice of the nation until the aforementioned law was passed;

f.          That all remedies under domestic jurisdiction have been exhausted, as required by Article 46.a of the Convention (Art. 37.1 of the Regulations of the IACHR), considering that since the passage of Law 23,187, the following rules have been reached on the matter:

i.        First instance court ruling on the protection appeal against the national government, handed down by a judge of Federal Administrative-Contentious Court No. 3, declaring Law 23,1 87 unconstitutional;

ii.       Appeal Chamber (Court IV) ruling, on appeal of the ruling of Judge No. 3 filed by the Minister of Education and Justice, overturning the ruling of said judge and denying the protection appeal;

iii.       Ruling of the Supreme Court of Justice, on a special appeal filed by the petitioner, which upheld the denial ruling of the Chamber of Appeals and, therefore, that Law 23,187 was constitutional.

g.          That the Supreme Court’s ruling was notified to the plaintiff on June 27, 1986, and thus the complaint was submitted to the IACHR within the term of Article 46.b of the Convention (Art. 38 of the Convention);

h.          That the subject of the petition is not pending in any other international procedure (Art. 46.c of the Convention) and the charge is not the same as an earlier petition (Art. 46.d of the Convention);

i.          That Law 23,187, establishing the Colegio Public de Abogados encompasses basically four aspects, namely:  requirements to practice law *Title I), enrollment system (Title II), mandatory membership (Title III), and disciplinary powers (Title IV); that the provisions of the law dealing with points a, b and d are not the subject of the complaint since they do not possess the character of violations of human rights invoked even though they do constitute “useless regulation” which makes matters already properly legislated more complex, onerous, and bureaucratic, and transfers to this bar association and professional registration that was until that time a free service of the Supreme Court of Justice, and that, as a consequence, the petitioner wishes to have it clearly stated that this claim “is aimed exclusively at declaring as a violation of the Convention the system of obligatory, compulsory, and automatic membership stipulated by the articles of Law 23187” which set up this mandatory membership system;1

j.          That the city of Buenos Aires has two bar associations that offer open membership to practicing attorneys in either one or the other, although some attorneys are not affiliated with either of them while others are affiliated with smaller bar associations for these professionals.  Examples are the Corporación de Abogados Católicos, the Colegio de Abogados del Estado, and the Asociación de Abogados de Empresa;

k.          The first of these bar associations is the Colegio de Abogados de Buenos Aires.  This association, founded in 1913, has stood for more than thirty years for opposition to any form of compulsory membership, and has long fostered initiatives to maintain a democratic structure in Argentina and an independent posture by the judicial branch of government;

l.          That the second is the Asociación de Abogados de Buenos de Buenos Aires which, even though it has a democratic leaning and has fought for civil liberties, “has turned its efforts toward establishing the mandatory membership requirement,” and has prepared a draft law to this end (which was the reference document for current Law 23,187), to establish a single bar association in the federal capital city;

m.          That while the Colegio Público de Abogados de la Capital Federal, established by Law 23,187, is a not-for-profit association whose purpose is to bring together persons of the same stature and profession–which legally is a contractual and consentual act perfected by the “later admission and membership of others to the association already created”–it too must follow all the requirements of corporate law according to which “there is no association without free expression of will formulated upon the founding or joining of the association and acceptance as a member”;

n.          That sufficient proof that the “Colegio Público” created by Law 23,187 is an association is that “such qualification is conferred to it by the Chamber of Deputies, according to the record of the minutes of meetings” and that, it should be added, “as an association it constitutes a legal person under non-state public law, which status arises from the source of its creation (Art. 17, Law 23,187), the nature of its objectives (public interest), its financial independence and the fact that it is not part of the active, central or decentralized public administration”; it should be recalled, it is stated, that “colegio” and “asociación” are legally and grammatically synonymous terms [describing organizations that] can exist only with the free will to join of their members (affection societatis);

          o.          That, furthermore, Law 23,187 violates the American Declaration of Rights and Duties of man (Art. XII) and the Universal Declaration of Human Rights which expressly provides (Art. 20.2) that “no person may be obligated to join an association.”1  It also violated Art. 29.c of the Convention in that it excludes other inherent human rights and guarantees, limiting the effect of the American Declaration and other international acts of the same nature, although the terminology of the law, especially that of Art. 18, leads to confusion by equating the terms “matriculation” [enrollment or registration] and “asociación” [association] and making such enrollment obligatory; it also violates Art. 11 of the Convention because the act of requiring membership “is an abusive attack on private life which is victimized when the state seeks to impose on it a compulsory life which is victimized when the state seeks to impose on it a compulsory association as a consequence … to the establishment of a cooperative body …”

          p.          That the right to establish professional associations in Argentina ought to attend to the context and quality of degrees issued in Argentina since “argentine universities award certifying degrees” which authorize those who hold the degrees to exercise the profession and there fore the state’s action should be limited to “being vigilant to prevent the state from certifying irresponsibly any person who is not prepared and also ensuring that the same state does not sue that power to discriminate or limit in any way access to the profession.  Under such conditions, then, the matter of obligatory association is subordinate to other guidelines, is a response also to other tradition sans has well defined purposes.”

          q.          That, likewise, Argentine domestic law (Arts. 14 and 14 bis of the Constitution) guarantees all inhabitants freedom of association for useful purposes, with trade union organizations being free, a fact that entails the right of not being obligated to join any social or trade union organization.

          r.          That, likewise, Argentine jurisprudence has recognized, in several Supreme Court of Justice rulings, the nonbonding nature of the freedom of association (Article 14 of the Constitution)2 and that, therefore, the court’s ruling in relation to Law 23,187 is not consistent with the right because it based its ruling upholding the constitutionality of that law on the belief that the Colegio Público is neither an association nor a trade union.  The terms of the dissenting vote of judge Dr. Pablo Galli, set out below, are applicable here:

The trade union is a voluntary associational union which is set up for those in the same skill category of workers or employees ….” (Livio, Labor, Sindicalismo y Sociedad, Ediciones de Atlántico, Buenos Aires, 1957, page 17).  “Every trade union is an association…” (Guillermo Cabanella, in Enciclopedia Jurídica Omeba, Voz Asociaciones Profesionales, Tomo I, page 857), and finally, and I transcribe this once again:  “What is this Colegio Público lacking to make the grade as a trade union? since the law entrusts to it the representation of professionals … Necessarily, these persons feel compelled to have a common opinion …”1

          s.          That this case ought to be remitted to the Court given the optional authority conferred by Article 51 of the Convention.  This request, already mentioned, is based on the criterion expressed by the Court in consultative opinion OC 5/85,2 which states that the Court ought to have submitted to it cases in which there could have been domestic legal problems in the country against which the charge would have been made, such as opposing court decisions on the same case submitted to the Commission, or if the latter did not reach a unanimous opinion in its review of the matter.  In support of this petition, the plaintiff recalls that in connection with Law 23,187 there has been an initial contrary ruling from the Federal Contentious-Administrative Court, which held the law unconstitutional.

          t.          That in this case, the “nature of the matter submitted to this Honorable Commission leaves no room for a friendly settlement” since, being faced with a law passed by the Argentine Congress, the executive branch of government has no power to amend its provisions and therefore a compromise agreement is manifestly impossible.  Consequently, the claimant asks that the procedure of friendly settlement not be applied (Article 45.7 of the IACHR Regulations).

          9.          In a note dated September 5, 1986, the Commission transmitted the denunciation in full to the Argentine government, following authorization by the petitioner who further renounced his right to secrecy of identification, in accordance with Article 34 of the Regulations.  A copy of the letter was remitted to the Argentine mission to the OAS.

          10.          The Argentine government, in a note dated March 26, 1986 (No. 15), replied to the Commission’s request for information in a lengthy brief whose principal points are set out further on.3

          a.          Regarding the description of the law, the Government states:

Description of Law No. 23,187:  Analysis of Argentine Law 23,187 leads to the conclusion that it establishes the Official Association of Lawyers of the Federal capital with jurisdiction and exclusive competence in the territory of the City of Buenos Aires.

This Law was enacted by the Argentine Congress in accordance with and under the terms of Article 67, paragraph 27 of the National Constitution.

This Article states:

Article 67:  The Congress shall have power: … 27.  To exercise sole power of legislation throughout the territory of the Capital of the Nation…”

This legal norm is directly related to article 86, paragraph 3 of the National Constitution, which states:

          Article 86:  The President of the national has the following powers:  … He is the immediate and local head of the Capital of the Nation.

Article 3 of the Argentine National Constitution States:

          Article 3:  The authorities who direct the federal Government shall reside in the city that is declared the capital of the Republic by a special law of Congress, after cession by one or more provincial legislatures of the territory to be federalized.

Law 23,187 applies exclusively to the territory of the city of Buenos Aires.

b.          As for stipulating bar association systems, the Government says:

Information on systems of association of lawyers in Argentina:  Argentina is a Federal State (Article 1 of the National Constitution).  Distribution of competence between the Federal State and the provinces is governed by the National Constitution.  The basic article is Article 104, which reads as follows:

Article 104.  The provinces shall retain all powers not delegated by this Constitution to the Federal Government and those expressly reserved by special pacts at the time of their incorporation.

The powers of the Legislative Branch are fundamentally set forth in article 67 of its components of the National Constitution; those of the Executive branch in Article 86 et seq.; and those of the Judiciary Branch in Articles 100 and 102 of the Argentine National Constitution, which apportions competence.

The purpose of this chapter, as indicated by its title, is to inform the Honorable Commission of the system of association of lawyers as it exists in Argentina.

The Argentine federal system has been explained above.  In consequence, the power of supervision of the exercise of the free professions is reserved for the provinces, and therefore each province has solved for itself the question of association.

It is very important to point out that there are 22 provinces:  Buenos Aires, Córdoba, Catamarca, Corrientes, Entre Ríos, Jujuy, Mendoza, La Rioja, Salta, Santiago del Estero, San Juan, Santa Fé, San Luis, Tucumán, Formosa, Chaco, Misiones, La Pampa, Chubut, Río Negro, Neuquén, and Santa Cruz, in addition to the Federal Capital, which is Buenos Aires, and a territory consisting of Tierra de Fuego, the Malvinas, and the Islands of the South Atlantic and Antartica.

The topic of association thus involves the 22 provinces, the Federal Capital and the territory of Tierra del Fuego, that is, 24 judicial districts.  Of the 22 provinces, 19 have an official association similar to that of the Federal Capital under the terms of Law 23,187.  It should also be pointed out that in the provinces the associations fall within the competence of their respective courts.  Thus, for example, in the province of Buenos Aires there are numerous judicial districts.  The law authorizes an official association for each judicial district, and those registered in an association are empowered to exercise their profession throughout the jurisdiction of the province with no need to register again in the province.  The same situation obtains in other provinces, as Santa Fé, Córdoba, Mendoza, and so forth.

Association as described in the provisions of Law 23,1 87 applies in 19 Argentine provinces and in the Federal Capital.  The three provinces that do not have associations are in the process of forming them.

In the three remaining provinces there is a strong movement toward association in a manner similar to that prescribed by Law 23,187.

c.      In connection with the effective term of the law, the Government states:

The fact is that the legal profession in the city of Buenos Aires has registered somewhat more than 32,000 lawyers.

The Bar Association has approximately 1,700 members and the Association of Lawyers some 3,600 members.

All lawyers are registered under Law 23,187 in the Official Bar Association of the Federal Capital, to which original membership under de facto Law 22,192 was transferred, a law which was largely repealed by Law 23,187.

In this respect, see Article 65 of Law 23,187, and also Decision No. 54 of the Supreme Court dated August 22, 1985, which partially establishes the limits of the repeal of de facto Law 22,192.

It is a concrete fact, nevertheless, that the patter initiated by de facto Law 22,192 in November 1982, and continued in Law 23,187, by virtue of its transitory provisions and Article 60 of its component parts, the number of registered lawyers as of the date of this presentation is that specified above.

Numerical comparison of these figures provides a sufficiently objective example of the extent of membership of the two voluntary organizations that have attracted the lawyers of the city of Buenos Aires in the past and continue to do so at the present time.

It should also be noted that the position of the complainants with respect to Law 23,187 is accompanied by only a minuscule number of lawyers in the legal profession in the city of Buenos Aires.

d.          On the legitimacy of the Colegio Público de Abogados de la Capital Federal, the Government makes the following statement:

5.          Legitimacy of the Official Bar Association of the Federal Capital as a legal entity under Law 23,187 in the legal profession in the city of Buenos Aires:  There is not the least doubt that the legality of the Official Bar Association of the Federal Capital in the city of Buenos Aires is founded on Law 23,187.

This law is founded on Article 67, paragraph 27 of the National Constitution, but the legitimacy of the Official Bar Association of the Federal Capital is based on a sociopolitical fact and on its precedents and consequences.

This legitimacy is manifested as follows:

Law 23,187 makes voting on the Law compulsory, but establishes no penalties for those who fail to vote on it.

This is absolutely objective and is evident from reading the Law.

Although under the terms of this legal provision elections were called for April 29, 1986, no fewer than nine voting lists contended in the election.  What is truly extraordinary is that from a list of approximately 27,000 registered, no fewer than 17,500 turned out to vote.

Consequently, it should be pointed out that of the 27,000 registered approximately 10,000 were and are lawyers residing more than 400 or 500 kilometers from Buenos Aires, losses for other reasons in the voting lists notwithstanding.

This means that if voting on April 29, 1986, is analyzed in detail, it may be concluded that more than 95% of those who resided less than 400 or 500 kilometers from Buenos Aires voted–and this without sanctions for those who did not vote.  Without fear of error it may be said that such extraordinary support for the vote gave the Official Bar Association of the Federal Capital absolute and total legitimacy.  There were not more than 900 blank or invalidated ballots out of a total of more than 17,500 voters and the elections took place in a single day.

Some 3,500 votes were cast for the majority list as the first minority.  This was followed by some 3,200, 2,000, and more than 1,5oo for the second, third, and fourth lists respectively.  The remaining lists garnered fewer than 1,000 votes each.

Participation in the election was the most impressive political event taking place in Buenos Aires in 1986.

All the newspapers and magazines commented on the extraordinary support shown for Law 23,187, which involved participation of more than 17,500 voters in the election held on April 29, 1986.

The foregoing facts are public knowledge, to which must be added the strictest regularity and propriety during and after the election.  It should also be noted that the electoral campaign preceding the electing on April 29, 1986, was of unusual intensity, a factor that further supports the legitimacy of this extraordinary attendance at the polls.  Law 23,187 gave legal status to the Official Bar Association of the Federal Capital, and participation in the election on April 29, 1986, gave it legitimacy.

It must be remembered that failure to vote in this emergency was not penalized in any way, thereby objectively demonstrating the legitimacy of Law 23,187 in the minds of those exercising the legal profession in Buenos Aires.

e.          As regards the nature of the “Colegio Público de Abogados,” the Government makes the following statement:

The means by which the distinguished petitioners present the problem to the Inter-American Commission on Human Rights fail to take into consideration the fact that all systems designed to protect human rights internationally are founded on presumed, concrete denunciation of violations.

In this regard the requirements of Article 32 of the Regulations of the Commission are clear:

          Petitioners addressed to the Commission shall include: … an account of the act or situation that is denounced, specifying the place an date of the alleged violations and, if possible, the name of the victims of such violations a well as that of any official that might have been appraised of the act or situation that was denounced.

The petitioners do not consider that the part of Law 23,187 that refers to the admission requirements and the disciplinary powers of the Official Bar Association is in violation of the pact (See p.9).

Nor do they object to the payment of annual dues by members considering such annual dues to be a natural and necessary consequence of membership.

On the other hand they consider to be a violation of the Convention the fact that (in the opinion of the petitioners) forced representation of lawyers is imposed upon the Bar Association (See p. 10).

This topic will be taken up again later on, but it may be pointed out here and now that such representation does not appear expressly or tacitly in the text of the Law.  Further more, the complainants do not mention any specific case in which such representation has taken place.

As a consequence of the alleged force representation the complainants state that the lawyers are compelled to have a common opinion by means of the Association (See p. 10).

This topic will also be taken up later on.

At this point the complainants do not present any specific cases in which such alleged violation of the freedom of expression, referred to in the beginning of the preceding paragraph, has taken place.

It should additionally be emphasized that the complainants fail to specify which of the provisions of the Pact are in conflict with the alleged opinion.

The complainants add that the regulations providing for compulsory voting on the part of the members in elections to the Bar Association violate the Pact.  Again in this case, however, they fail to specify which of the provisions of the Pact are in conflict with compulsory voting.

As has been pointed out already in this reply, the complainants also fail to mention that Law 23,187 does not provide for any penalties for non-participation in elections.

As a first significant reply to the alleged charges of conflict of Law 23,187 with the Pact, it is to be noted that in presenting their transcript the complainants have not demonstrated that they have exhausted all applicable Argentine domestic juridical procedures.

In the case in which Attorney Alejandro Meliton Ferrari was the complainant in the amparo procedure that questioned various aspect of the constitutionality of Law 23,187, the Argentine Supreme Court handed down a decision on June 26, 1986.

This decision has legal foundations that extend beyond the resolution of the topics debated in the case itself.

It is a unanimous decision, although two of the Judges of the Court presented separate explanations of their votes.  The conclusions, however, were unanimous and the arguments supportive and to the point.

The essence or core of the decision implies and signifies a juridical demonstration of the nature of the Official Bar Association of the Federal Capital as the originator of Law 23,187.

The decision may be summarized as follows:  The Official Bar Association of the Federal Capital is a legitimate delegation of the State’s administrative power to an organization established for the purpose of receiving such delegation of power.

The Official Bar Association of the Federal Capital is a public law democratically organized legal person in which rights and obligations were exercised in accordance with reciprocal controls of the internal organs of this body as established by law.  These organs are democratically constituted by election.  The terms of office are reasonable.  Inter-organ controls guarantee sound functioning of the organization.

b.       On the essence of Law, the government points out:

The essence of Law 23,187 lies not only in the prestige it accords the exercise of the legal profession but also, fundamentally, to the protection of the liberty and dignity of lawyers.

Four articles provide the key to the Law under discussion.  The essence of Law 23,187 is the respect shown for the liberty and dignity of lawyers in the exercise of their profession.

This is expressly stated in article 1 of Law 23,187.

Article, 1, which is the essence of Law 23,187, has been incomprehensibly omitted in the transcript to which the present statement is a reply.

It may be said that Article 1 constitutes the totality of Law 23,187 insofar as its objectives, purposes, and essence are concerned.

A reading of the Law is essential for understanding it and is sufficient to answer all the charges of the complainants.

It is the crux of reply to the alleged charges and demonstrates how the Law dovetails with the political philosophy of the Argentine National Constitution and the political philosophy of the Pact of San José, Costa Rica.

Article 1 of Law 23,187 agrees with the Argentine Constitution and with the Pact of San José, Costa Rica, in that it is the best reply to all the alleged charges of the complainants.  Article 1 reads:

          Article 1:  The exercise of the legal profession in the Federal Capital shall be governed by the provisions of the present Law and subordinately by the provisions of the national procedural codes and any other laws that are not repealed by the present Law.

g.          On the purpose of the Law:

In the alleged violation of freedom of association, it is pertinent to point out that under the terms of Law 23,187 the Official Bar Association of the federal Capital is a creation of that same Law, that is, a delegation of the exercise of enforcing power with regard to the legal profession in the city of Buenos Aires.

Article 17 accurately describes the Association as being of a public nature, as follows:

          Article 17:  The Official Bar Association of the Federal Capital is hereby established, which shall supervise the exercise of the legal profession and be responsible for registration in the Association in the geographic area of the Federal Capital and with reference to professional activities in that jurisdiction in conformity with the provisions of this Law.

The Official Bar Association of the Federal Capital shall function with the character, rights, and obligations of legal persons under public law.

Special waivers notwithstanding, the Association’s administrative activities assigned it by his Law shall be carried out supplementary by observing Law 19,549 on administrative procedures.

Private associations or organizations that may be constituted in the future shall be prohibited from using the denomination Official Bar Association of the Federal Capital or any others which by their similarity may lead to confusion.

Lawyers registered in the Official Bar Association are and were those registered in the list maintained by the Office of the Undersecretary for Registration of the Supreme Court of Argentina under the terms of de facto Law 22,192.

Moreover, the numeration of de facto Law 22,192 was continued in the same books the Supreme Court used for that purpose.

At the present time the Official Bar Association continues with the same books, and registration is now being recorded in Volume 37 under the terms of Article 18 of Law 23,187, which states:

          Article 18:  Lawyers presently registered in the list maintained by the Office of the Undersecretary for Registration of the Supreme Court of Argentina shall be registered in the Official Bar Association of the Federal Capital, as shall lawyers who in the future are registered in the Association under the terms of the present Law.

There is no difference between registration with the Supreme Court and with the Bar Association at the present time.

Moreover, judicial control of legality exists with regard to all matters concerning registration under the provisions of Articles 12 and 13 of Law 23,187.

It is most instructive to bear this in mind in noting that, far from violating the right of association, all matters concerning practice of the legal profession in the Federal Capital are presently guaranteed in exactly the same matter as they were previously.

Effective delegation to the Association by virtue of Law 23,187 with respect to registration of the police power of the State is consequently evident.

Also evident is the State’s control of legality through the Judiciary Branch, all of which demonstrate that no essential modification has taken place in detriment to the right of association.

An opinion was provided on these procedures by Dr. Nieto Navia in advisory opinion OC-5/85 of the Inter-American Court of Human Rights, which states “… freedom of association is violated if the law compels individuals to join associations, if the proposed aims of that association are such that they could be achieved by associations created by individuals using their freedom …”

It is evident that police power does fall within the scope of such creative powers of individuals.  Police power is within the political-juridical structure of the state.

Consequently, Dr. Nieto Navia’s opinion is not applicable in the case at hand.

h.          As for the mandatory nature of the registration and other characteristics of the Law, the Government expresses:

Compulsory registration of the Official Bar Association of the Federal Capital under Law 23,187 constitutes reasonable regulation of a public function and personal services as legitimized in Articles 16 and 17 of the Argentine Constitution.  Consequently, those registered in the Official Bar Association of the Federal Capital have no associative ties among themselves.

The relationship of each lawyer and the Association is therefore an ope legis relationship, and consequently the obligations imposed by the law on those registered are also ope legis obligations.

An important segment of the statement of Dr. Augusto C. Belluscio, Supreme Court Judge, regarding Ferrari, Alejandro Meliton V. Argentina (P.E.N.) regarding remedy of Amparo decision handed down on June 26, 1986 and published in Derecho on June 29, 1986.

Professor Belluscio stated:

          Control of professional practice is indispensable by virtue of the great number of professionals on the condition that it does not impair their particular and private nature and the essence of sound social order.  This may be achieved through control of a state body or by the social entity formed by the members of each profession.  The constitutionality and indisputable common benefit must be emphasized here of a legal system that provides the regularly constituted members of a specific social sector with attention to the problems concerning their own interests and not to an exclusively public organization.

The Judge also stated with regard to the Ferrari case that the Official Bar Association constituted by Law 23,187 is not an association in that the law does not contain any provisions under which registration signifies entering into associative ties with the other members.  On the contrary, its juridical nature and essential purpose are defined in Article 17, which provides it with the character of a public law juridical person, and therefore the position of lawyers regarding the Association is one of ope legis submission to the public authority it exercises and the obligations the same Law directly imposes, without any societal ties and without detriment to the freedom to associate in trade unions provided for in Article 14 bis of the Constitution, inasmuch as the association under discussion is not a trade union organization.

Member of the Court Enrique Petracchi said in the Ferrari case:

Law 23,187 does not contain any provisions according to which compulsory registration in the Official Bar Association involves entering an associative tie with the other members of the organization, which is a public organization designed to fulfill public functions and play a non-associative, advisory, and participatory role, founded on the principles of social democracy and subordination.

The individualistic viewpoint according to which each being appears to be isolated is not compatible with the social spirit of the Constitution, since although the human personality can only develop through intercommunication and solidarity, it should not be forgotten that it is also preserved in the autonomy of its decisions by Article 19 of the Constitution.

The Sate cannot impose membership in a given association or group, nor should it regulate actual links among persons that derive from the spontaneously restrictive structures emerging in the course of history of society rather than from consensus.

The functioning of representation can be strengthened and improved through socio-professional consultation and participation without such modalities involving compulsion of the members of each sector to participate regularly in societal activities.

It is not a question of the Bar Association, in its advisory function, of compromising the opinion of each of its members, but rather of the members, without prejudice to the expression of their opinions as individuals or in spontaneously established groups, contributing to the establishment of discussion and planning forums sponsored by those who desire to improve representative democracy.

In the same Ferrari decision Dr. Belluscio stated:

The right to associate for practical purposes doubtless implies the right not to associate, but that refers to societies whose existence is not required for the order and welfare of society as a whole.  Consequently, the system of association does not damage the right to associate and the correlative right not to do so because it is precisely a question of the legal statute of a social structure preconstituted by the nature of things in which the formation of a society is not imposed on the lawyers that is different from that which they are joining by the mere fact of registration and the exercise of their profession in that forum in a community organized for discipline and the greatest possible moral safeguard of professional practice.

Substantively, paragraph 28 of Article 67 of the Argentine Constitution authorizes the constituted powers–specifically the Congress–to make all laws, and the Executive Branch all appropriate regulations to exercise such powers, and all others granted by the Constitution to the Government of Argentina.

The delegation of police power, as provided for in Law 23,187, is compatible with this doctrine and with jurisprudence.

Delegation was accorded a body established by the delegating Law.  It granted to that body, the Bar Association, police power in all matters pertaining to the legal profession, its registration and discipline.  Its purpose is the liberty and dignity of lawyers in practicing their profession in accordance with Article 1 of Law 23,187.  Control by the Judiciary and control of administration and government by the Executive Branch through possible intervention in the Bar Association were set aside.  The delegation is legitimate, since all the precepts in this respect are present and also because the delegator continues to hold power, inasmuch as it merely delegates and transfers the exercise of powers.

Congress may amend Law 23,187 at will.

The State is the original holder of the power it delegates and is at the same time the entity that conserves the power of control.  Consequently, delegation of police power and its adjuncts to the Bar Association under Law 23,187 is legitimate in accordance with Article 67, paragraphs 27 and 28, and Article 86, paragraphs 2 and 3 of the Constitution.

i)          As precedents for registration of attorneys of the Argentine Republic, the Government notes the following:

In addition to the case already referred to in the present case as a valid legal basis for the topics under discussion, mention should be made again of the Supreme Court decision in Inchauspe, Pedro V. Junta Nacional de Carnes, handed down on September 1, 1944, and published in Fallos, volume 199, p. 516, which is applicable to the case; and of Supreme Court decision of September 7, 1944, in Oscar Augustín Avico V. Saúl G. de La Pesa, in Fallos, Volume 172, p. 29, in which delegation is legitimized as in Law 23,187.

Also of interest is Cavic V. Maurin y Cia SRL Juan, published in Volume 139, p. 527 et seq.  In this important decision the Supreme Court recognized police power to intervene through the use of legal instruments to guarantee reasonable interests of the community.

          9.          Inconsistency on the part of Attorney Alejandro Meliton Ferrari as a member of the Bar Association of the City of La Plata, Province of Buenos Aires, from March 3, 1955, to date in accepting there a membership system absolutely analogous to Law 23,187, which he impugns in this procedure and in the preceding judicial actions.  Application of the principle of estoppel by deed (Translator’s note:  See Black’s Law Dictionary:  Nemo contra factum suam venire potest.  Arbitrariness of the contradiction and its consequences:

This chapter is brief and points to actions of juridical importance that invalidate the objections of Attorney Alejandro Meliton Ferrari.

Attorney Meliton Ferrari, as set forth in his objections on page 2, Chapter 4, Vital statistics, graduated with a law degree in 1954 from the School of Law and Social Science of the University of Buenos Aires.  In addition to registering as a lawyer in the Civil Chambers of the City of Buenos Aires, he also registered in the city of La Plata, capital of the Province of Buenos Aires.

As is well known, in the Province of Buenos Aires a registration system exists that is practically identical to that established by Law 23,187.  Attorney Ferrari, at least as far as is known, never questioned registration in the Judicial Department of La Plata, Province of Buenos Aires.

It has already been explained that in accordance with the law, registration in the Province of Buenos Aires is structured in accordance with the judicial departments into which the province is divided.  Each judicial department has a bar association, and registration in one association gives lawyers the right to practice in all judicial departments.  All the associations are centered around the Bar Association of the Province of Buenos Aires.

The provincial law that established the bar association system in the province of Buenos Aires is Law 5177, which has been in force in the Province of Buenos since November 13, 1947.

Membership is compulsory under the provisions of Chapter Two, Article 6 and its components of the law.

j)          As for exhausting all remedies of domestic jurisdiction, the Government stated:

In the two cases being replied to jointly it may be considered that the remedies under domestic law have been exhausted.  This being the case, by its decisions the Supreme Court of Justice formally admitted the special recourses (Law No. 48), examined the substance of the question and upheld the decisions of the previous instance.  However, notwithstanding compliance with this formal requirement (Art. 46, American Convention on Human Rights), for the reasons given earlier, it is incumbent on the Commission to evaluate the possible admissibility of these cases.  By virtue of the foregoing, the Government of Argentina requests that communications No. 9777 and 9819 be declared inadmissible in light of the provisions of Article 47, b and c, of the American Convention on Human Rights.

11.          The Commission, in a letter dated April 15, 2987, transmitted to the petitioner the reply from the government and gave him a terms of 45 days to formulate his observations and comments.

12.          The plaintiff, in a letter dated June 1, 1987, formulated the observations that are summarized below:1

a)          That Law 23,187, under the pretext or “innocent excuse of an enrollment, the consequence of the delegation of power by the state, manipulated a mechanism used to bring all attorneys together into a single body that groups them in an obligatory fashion.” (p.8);

b)          That the bar association established by Law 23,187 is not a “public law agency that exercises the function of professional police power delegated by the state, as the Argentine government contends, but is, on the other hand, a professional association with all the characteristics of such since it groups attorneys, acts in their defense, represents them before public authority and the community at large, issues opinions on problems and current events in their behalf” and, in short, carries out all the purposes that qualify it as a representative association of the attorneys of the federal capital city (p. 11).

c)          That in view of the characteristics of the situation created by Law 23,187 with regard to which violations of the Convention (Article 16) occur, as well as the right to dignity (Article 11) and the right to free expression (Article 13), and the controversy that exists in the area of domestic jurisdiction, considering that there are opposing court decisions on the constitutionality of that law, it is requested again that the IACHR submit the case to the Court in accordance with Article 51 of the Convention.

13.          The Commission, in a letter dated June 17, 1987, transmitted the observations of Mr. Meliton Ferrari to the government for the purpose of replying to them if it considered such action appropriate.  A copy of that letter was transmitted to the Argentine mission to the OAS on the same date.

14.          Meanwhile, the government transmitted in a letter dated July 7, 1987,  (No. 19) additional information on the case, consisting of a copy of the ruling of the Supreme Court of Justice of the Nation, dated March 3, 1987, in the documents filed under the “Bereraggi de la Rua and others vs. the National State:” the subject of those documents would be substantially analogous to those presented to the Commission, that is, the constitutional validity of Law 23,187.2

15.          The Argentine government, in a letter dated September 17, 1987, (No. 24) referring to the letter dated June 17, 1987, submitted its reply to the observations made by the petitioner.  A discussion of the principal points of that reply follows.3

a)          With respect to the scope of Law 23,187 and from a reading of its Article 1, 2, 18 and 60, the Government observes the following (pp. 304).

Pursuant to these articles, the State has delegated to the Official Bar Association the control of the registration of those who, being legally licensed to practice law, seek to do so in the jurisdiction of the Federal Capital.  Since that is the case, it is logical that all lawyers registered according to the system previously in effect in their jurisdiction shall be considered as being listed on the registry kept by the Bar Association.

The petitioner has seen in these provisions an “associative linkage,” a sort of “affectio soietatis” that would link each lawyer registered with the Bar Association.  That is not the case.

In fact, Article 17 of Law 23,187 states:

          Article 17.  The Official Bar Association of the Federal capital, which shall supervise the exercise of the legal profession and be responsible for registration with the association in the geographic area of the Federal capital, with reference to professional activities in that jurisdiction in conformity with the provisions of this law, is hereby established.

The Official Bar Association of the Federal Capital shall function with the character, rights and obligations of legal persons under public law.   Except for special waivers, the Association’s administrative activities assigned to it by this Law shall also be governed by Law 19,549 on Administrative Procedures.

…

The Bar Association then is an organization that acts “with the character, rights, and obligations of legal persons under public law.”  According to Article 33 of the Argentine Civil Code, these persons are the State, the Provinces, the Municipalities, independent agencies, and the Catholic Church.

A reasonable legal interpretation leads to the view that the Bar Association acts “with the character, rights, and obligations of legal persons under public law” because it acts by delegation of power from the National Government.  This assertion is in accord with the same Article 17 when it provides for the application–in addition to Law 23,187–of National Law 19,549 on Administrative Procedures, which governs nation-wide actions of and before the National Government, except for military, defense and security agencies.

The provisions of the functions and jurisdiction of the Bar Association support this interpretation, particularly the following:

“Keeping the registry of lawyers practicing law in the Federal Capital …” (Article 20, subparagraph b).

“The exercise of disciplinary power over registered lawyers” (Article 20, subparagraph b).

“Monitor and control of the practice of law to see that persons who are not qualified, or are not registered do not practice …” (Article 21, subparagraph b).

“The rules of professional ethics shall apply …” (Article 21, subparagraph c).

The mere reading of these paragraphs indicates that the Organization concerned can only be a public agency under national law.

This reasoning is found in the ruling of the Supreme Court of June 26, 2986, as a result of which the petitioner has filed a complaint with the Inter-American Commission on Human Rights.

That the Law mentioned (23.187) contains no provisions where by being listed on the registry would entail entry into an associative linkage with the other persons registered with that Bar Association.  On the contrary, the Association’s legal nature and basic purpose are defined in Article 17 of the Law, which assigns it the character of a legal person under public law, so that the position of a lawyer vis-à-vis the Bar association is that of being subject ope legis to the public authority that the agency exercises, and to those obligations the Law imposes directly on such attorney, without regard to his linkage with any organization (F.446-XX- Ferrari, Alejandro Melitón V. Argentina (P.E.N.) on Amparo.  CSJ June 26, 1986, paragraph 10 of the preamble.

          b)          With respect to the consultative opinion, the Government states the following:

In OC-5/85 the Court stated that “the assertion that compulsory membership is structural by the way to organize the practice of professions in general … implies that such membership is based on public order.”  In this regard, it has considered that “a possible meaning of public policy in the Convention is that it refers to conditions that ensure the harmonious and normal operation of institutions on the basis of a consistent system of values and principles.  In that sense, restrictions on the exercise of certain rights and duties might be justified to ensure public order “ (CF. OC-5/85 paragraph 64).

In the same context, the Court has said that “it can be maintained in general that the exercise of the rights guaranteed by the Convention must be consistent with the general welfare,” which is understood as “a concept referring to the conditions of life in a society the enables its members to achieve a higher democratic values,” so that “statements that compulsory membership is a way to ensure professional ethics and responsibility … must be considered as based on the idea that such membership represents a requirement of the general welfare” (CF. OC-5/85 paragraphs 65 and 66).

However, the ideas of “public policy” and “general welfare” are not enough in themselves to make restrictions on protected rights legitimate except to the extent that such rights are “necessary in a democratic society.”  Democratic public policy and democratic general welfare are involved in a restriction imposed by a democratic law.

Along these lines, the Court has recognized that organizing professions in general into professional associations is not per se contrary to the Convention, and it concludes that such organization is implied in democratic public policy (CF. OC-5/85 paragraph 68).

c)          As for Argentine Law the Government says:

It is in light of law in force in the Argentine Republic, including the American Convention on Human Rights, binding since September 5, 1984, that the delegation of powers by the Government to the Official Bar Association of the Federal Capital should be analyzed.

According to the view expressed, there can be no doubt that keeping the Registry (Article 18 and 20 subparagraph 2) of Law 23,187), the exercise of disciplinary power and supervision (Article 20, subparagraph b) and 231 (subparagraph B) idem) and the enforcement of standards of professional ethics (article 21 subparagraph c), idem) are government powers expressly delegated to the Official Bar Association by Law 23,187.  Accordingly, the Supreme Court has stated:

“… (The Official Bar Association) is an organization intended to accomplish public purposes that were originally the Province of the State and that the State by delegation, as specified normatively, transfers to the institution that it establishes to administer the registration and the disciplinary regime of all lawyers in the Federal capital, as auxiliaries of the administration of justice” (F.446-xx-Ferrari Alejandro Melitón vs. Argentina (Federal Executive Branch) (PEN) on amparo, CSJ, June 26, 1986, preambular clause 11).

d)          With respect to the point that the law violates freedom of association, the Government adds the following:

3.          In another part of its observations, the petitioner contends that violation of the right protected by the Convention, Freedom of Association (Article 16), occurred with the passage of National Law 23,187.

The GOVERNMENT OF THE ARGENTINE REPUBLIC is pleased that its national are enabled under the law to have recourse to an international non-judicial body in the field of human rights, as a result of Argentina's ratification of the American Convention on September 5, 1984.  Along this line of thought, it regards as legitimate the petitioner’s labeling as a “violation” an act of the State that, in its view, breached a human right whose free and full exercise the Argentine Government has undertaken to respect and guarantee.

This characterization by the petitioner is legitimate insofar as it is a ground for a complaint or denunciation (Article 4 of the American Convention) but it is not definitive because the American describes such characterization as “alleged.”  Thus, Article 44, paragraph 2, subparagraph b) on admissibility refers to “alleging violation.”  Similarly, the regulations of the Inter-American Commission on Human Rights regarding conditions for considering a petition uses the term “alleged violations” (Article 31) and regarding requirements for petitions refers to “alleged violations” (Article 32.b).

Accordingly, the ARGENTINE GOVERNMENT maintains that this is not a matter of the type of violation but rather of a legitimate restriction of freedom of association, which is necessary in a democratic society in the interest of public policy.

Since the position of a lawyer vis-à-vis the Official Bar Association is that of being subject ope legis to the public authority that the association exercises and to the obligations that the law directly imposes on him, without relation to membership in any organization, the petitioner cannot point to any specific damage or damages that enforcement of national Law 23,187 has caused him.

Actually, he has continued practicing his profession in the jurisdiction of the federal capital without the need for going through any formalities.  His membership in other professional organizations under private–specifically the Bar Association (Colegio de Abogados) that he mentions in his brief–have not been affected by enforcement of National Law 23,187.

e)          In connection with the previous conduct of the petitioner, the Government points out the following:

The petitioner’s previous behavior has not been taken into consideration in these observations.  He contends that, since he is registered with a number of associations other than the one we are now discussing, circumstances in the national context did not allow him to raise this question previously.

The Government of the Argentine Republic only wishes to go into two aspects of this topic.  First, it should be recalled that since 1954, when the petitioner graduated from the university with a law degree, the Argentine Republic went through two separate and of course unfortunately brief periods of the jure governments:  The presidency of Dr. Arturo Frondizi (12/10/58 to 27/3/62), the presidency of Dr. Arturo Humberto Illía 12/10/63 to 28/6/66), the presidencies of Dr. Héctor J. Cámpora, Dr. Raúl Lastiri, General Juan Domingo Perón and Mrs. María Estela Martínez de Perón (25/5/73 to 24/3/76).  In none of these constitutional intervals did the petitioner initiate any action to defend a right that he now considers to be violated.

Secondly, and not less important for being obvious, it should be borne in mind that this government took power on December 10, 1983, and the American Convention on Human Rights entered into force for the country on September 5, 1984, and thereby provided the legal authority to set in motion its system of control.  In other words, if it had been desired, a procedure could have been initiated–at the domestic level first, and if necessary, at the international level later, to give satisfaction to the petitioner whose freedom of association would have been limited professionally by his membership in the Official Bar Association of the Province of Buenos Aires.

However, it is only after entry into force of Law 23,187, that the petitioner found a reason to take action.

Attorney Alejandro M. Ferrari recognizes (point 6) that in 1955, he voluntarily joined the Bar Association of the city of La Plata, Province of Buenos Aires, and that that professional association has the same characteristics as the association established by Law 23,187.

In this regard, there are several references relating to our historic past on which this government will refrain, for reasons already given, from making comment.

It regrets, however, that the complainant has not stated categorically what motives caused him to join voluntarily an organization similar to that established by Law 23,187.

If the system that he joined voluntarily was responsible, as he states, for the “profound imbalances that dragged the Argentina community, which was previously prosperous and proud, put down into a continuous slide toward backwardness and poverty” (see p. 14), what reasons impelled attorney Ferrari to join voluntarily the Bar Association of the city of La Plata, which he could practice his profession without that requirement in the district of his domicile, that is in the Federal Capital?

The petitioner unfortunately does not state whether this was due to necessity, error, violent emotion, alienation, compulsion, ignorance or other justifying grounds.  His silence is tantamount to admitting that he joined voluntarily the system that he now attacks so severely and inappropriately.

f)          As for the appropriateness of the IACHR referring the case to the Court for settlement, the Government states:

8.          As a final point in his observations, the petitioner speaks of what he calls the procedural situation. Mentioning Case Advisory Opinion OC-5/85, the petitioner contends that it is clear that in a case where controversial legal problems arise and their domestic legal proceedings result in conflicting judicial decisions, the Commission remits the case to the Inter-American Court of Human Rights.

The Government of the Argentine Republic considers that the statement is incomplete.  In fact, in the advisory opinion cited, four different kinds of factors were differentiated in concluding that the case should be remitted to the Court.  Only tow of those were mentioned, namely:  1) a case that raises controversial legal issues and 2) conflicting court decisions.  The petitioner, therefore, omits 3) that the case could not be amicably settled before the Commission and 4) that the Inter-American Court has not ruled on the subject.

It is precisely these two omitted factors that are of the greatest importance in this case.  In fact, this case has not even been inadmissible by the Commission.  Therefore, there is no reason to speculate about a possible failure of a friendly solution.  In addition, regarding the fourth factor, the Inter-American Court has ruled on the compulsory membership of journalists in OC-5/85, and especially has devoted a paragraph to the Bar Association (OC-5/85 paragraph 73).

For the above reasons and since the communication does not present any facts that constitute a violation of the rights protected by the Pact of San José, Costa Rica, and the petition is clearly unfounded, the Argentine Government requests that, pursuant to Article 47, subparagraphs b) and c) of the American Convention on Human Rights and Article 35, subparagraph c) of the Commission’s Regulations, the petition be declared inadmissible and that the case is dismissed.

continued...

(*)     This report was approved by an affirmative vote by Messrs. Marco Tulio Bruni Celli, Chairman; John Stevenson, vice-Chairman; Gilda M.C.M. Russomano; Leo Valladares; and, Patrick Robinson.  Mr. Oliver Jackman voted against and Mrs. Elsa Kelly abstained under Article 18 of the Regulations.