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Petitions and cases declared admissible REPORT Nº
102/99 I.
SUMMARY
1.
On June 15, 1994, Mrs. María Merciadri de Morini (hereinafter
“the petitioner”) submitted a petition to the Inter-American
Commission on Human Rights (hereinafter “the Commission,” “the
Inter-American Commission,” or “the IACHR”) alleging that her
rights to due process (Article 8), to participation in government
(Article 23), to equality before the law (Article 24), and to effective
recourse (Article 25), as set forth in the American Convention on Human
Rights (hereinafter “the Convention” or “the American
Convention”), had been violated by the Argentine Republic (hereinafter
“the State,” “the Argentine State,” or “Argentina”).
2.
The petitioner claimed that on the six-candidate electoral list
drawn up by the Radical Civic Union (UCR) political party for the
election of national deputies in Córdoba province, one woman was placed
in the fourth position and another in the sixth.
This constituted a breach of Law 24.012 and its regulatory
decree, Nº 379/93, according to which two women had to be placed in the
first five positions. The
petitioner filed the available domestic remedies with the judicial
authorities, which not only rejected her petition but also denied her locus standi in the matter. Finally, the Supreme Court of Justice of
the Nation dismissed an appeal filed after the election had taken place
and after the political party in question had won four of the six
positions it contended. In
its dismissal it stated that, “in the elections of October 3, 1993,
the Radical Civic Union obtained enough votes for it to return four
national deputies, whereas the suit was disputing who should have run as
the fifth candidate.” The State reported that domestic remedies had
been exhausted in the case and asked the Commission to declare the
petition inadmissible because the allegations did not constitute a
violation of any of the rights protected by the Convention. 3. In examining the
petition’s admissibility, the Commission concluded that it is
competent to hear this case and that the case is admissible, in
accordance with Articles 46 and 47 of the American Convention. II.
PROCESSING BY THE COMMISSION
4.
The petitioner submitted her petition to the Commission on June
15, 1994, and it was sent to the State on June 16, 1994.
The Commission received a reply from the State on January 9,
1995, which was transmitted to the petitioner on January 18, 1995. The
petitioner submitted her comments on February 27, 1995, and these were
forwarded to the State on March 1, 1995.
The State requested an extension and replied on May 4, 1995.
The petitioner presented her comments on June 5, 1995.
The State replied on August 10, 1995.
On October 11, 1995, the petitioner sent a new communication,
repeating the position she had stated earlier.
On November 17, 1997, the petitioner sent a letter repeating her
complaint and asked the Commission to resolve the matter promptly; she
also attached judgments in other cases on which it could base its
decision. The Commission
incorporated this additional information into the case at hand because
their allegations were similar. On December 3, 1997, the letter was
forwarded to the State. The
State’s reply was received on February 18, 1998, and sent to the
petitioner on February 24, 1998. The
petitioner’s comments were received on March 31, 1998, and transmitted
to the State on May 26, 1998.
III.
POSITIONS OF THE PARTIES
A.
The petitioner
5.
The petitioner alleged that the Radical Civic Union political
party in Córdoba province had finalized, by the common accord of its
leaders, a list of six candidates for the lower house of Congress, to be
used in the October 3, 1993, election, and that it had placed women in
the third and sixth positions, without considering that the party would
return only five national deputies.
This constituted a violation of Law 24.012 (known as “the Quota
Law”), which guarantees that a minimum of thirty percent of the
elected offices filled through party lists must be covered by women,
“in proportions allowing them the possibility of being elected.” In
turn, Article 2 of Decree Nº 379/93, the regulations to the law, states
that “the thirty percent of positions to be covered by women,
stipulated in Law 24.012, must be understood as a minimum amount.
In cases where the mathematical application of this percentage
would yield a fractions smaller than one, the concept of the minimum
number shall be governed by the table attached to this decree as Annex
A.” This annex reads as follows: “positions to be replaced, five;
minimum number, two.” 6. These rules stipulate
that political parties must draw up their candidate lists in accordance
with the law, and that failure to do so will cause them to be invalid.[1]
They also establish, as a correlation, the right of constitutionally
enfranchised citizens[2]
to vote for lists of candidates that include women in the proportions
stipulated in the law. 7. The petitioner
claimed that if the Radical Civic Union’s list did not comply with the
law, it was restricting and undermining the consequent right of voters
to ensure men and women true equality of opportunities for holding
elected office. The harm
was that citizens were prevented from voting for a legally composed list
representing the party of their choice forced to vote for a list that
did not obey the law, thus violating the full enjoyment of voters’
political rights. The
petitioner believes that for this reason, the voting citizen cannot be
refused authority to demand that the aforesaid right be respected.
8.
The petitioner reported that, in her capacity as a member of the
political party in question, she challenged the list before the
Electoral Committee; this challenge was dismissed on May 20, 1993, with
the ruling that “the list of candidates arose from the consensus of
all the party groups, which agreed upon a single list.” She appealed
against that decision, after which, on June 22, 1993, the federal
judicial system rejected her application, upholding the defendant’s
objection that she lacked locus
standi in the matter. The petitioner then filed an appeal against
this second decision, which was dismissed by the Federal Electoral Court
on August 13, 1993. On
August 26, 1993, she filed an extraordinary remedy, which was rejected
on October 7, 1993, on the grounds that the election had taken place on
October 3, 1993, and that the matter was academic.
On October 18, 1993, the petitioner filed a complaint with the
Supreme Court of Justice of the Nation; this was dismissed on December
2, 1993, because “in the elections of October 3, 1993, the Radical
Civic Union obtained enough votes for it to return four national
deputies and the suit was disputing who should have run as its fifth
candidate.” 9. The petitioner held
that Argentina’s justice system should have ruled in accordance with
the law and that the matter “was not academic.”
In this regard, she stated that attention should be paid to the
very “concrete” “right of expectation” of being appointed to
serve as a national deputy in the event of a vacancy among those
elected. If a vacancy
arose, a man would take office–the one who was in fifth place–and
not, as should be the case, a woman.
Consequently, she maintained, a woman should have been placed
fifth, with a man in the sixth position.
Moreover, she held, even when four deputies were returned, two
women should be elected, because a single woman would represent 25
percent, less than the legal quota.
Consequently, women cannot be placed in any position on the list
without taking into consideration the number of offices that are to be
filled. 10.
The petitioner also alleged that in rejecting her locus standi in the matter, the Federal Electoral Court demanded
that she have an unspecified particular interest–whether economic,
social, political, etc.–without considering the importance of the
matter, which is of common interest to all. With this her rights were
violated, and she claimed that all persons have the right to file a
challenge without necessarily being the person affected by the position
he or she occupies on an electoral list. 11. Similarly, the petitioner
maintained that the classic demand for a violated subjective right or
for an unknown concrete interest was incomprehensible, particularly in
light of the decision of Argentina’s highest court of law in the case
of Ekmekdjian vs. Sofovich.[3] She also said that attention had to be
paid to Article 57 of the Organic Law of Political Parties, Nº 23.298,
which specifically recognizes the locus
standi of members of recognized parties “when they have been
denied rights granted by the Constitution and the party’s remedies
have been exhausted.” 12.
The petitioner alleged that the State violated Articles 8 and 25
of the American Convention because the first-instance court ruled that
she had no locus standi in the
matter. She also held that
by dismissing her suit, the Supreme Court violated the principle of
equality enshrined in Article 24, which in turn implied a breach of the
political rights protected by Article 23 of the American Convention. 13. In later submissions, the
petitioner included another similar case that occurred after the one
described in her original petition.
Specifically, for illustrative purposes, she included a
comparable case in which the National Electoral Court, on May 30, 1995,
ruled in accordance with her claims and ordered that the woman be raised
to the fifth position and the man moved down to the sixth.[4]
The petitioner reported that this case was upheld in her favor
when the Supreme Court rejected the appeals filed by the respondent.
14.
In addition, the petitioner also sent the Commission the
proceedings initiated by María Florentina Gómez Miranda,[5]
in order to “show that the reasons which motivated the petition
are still in place.”[6]
She also cited another case in which the Electoral Court authorized the
same political party in Córdoba province a list on which the women
likely to be elected accounted for 25 percent, for use during the
elections that took place on October 26, 1997.
The petitioner reported that domestic remedies had not been
exhausted in this case.
B.
The State
15.
The State noted that domestic remedies had been exhausted in this
case but that the petition was inadmissible in that it did not describe
actions that violated the Convention.
As regards its substance, the State maintained first of all that
the lists of candidates used in elections, in addition to being
validated by the electoral judiciary prior to the vote, have their
composition validated by the electorate.
It could therefore offer no alternative that did not in some way
undermine the people’s will as expressed at the polls.
16.
In order to show that women’s rights on electoral lists were
indeed respected, the State attached other decisions in cases brought by
the petitioner, in which the court ruled that the Radical Civic Union
had to modify its lists to include two women among the first five places
before submitting them to the electoral judiciary.
Specifically, it attached the National Electoral Court’s ruling
of March 30, 1995, overturning the December 21, 1994, decision by the
federal judge responsible for electoral matters in the city of Córdoba
in the case of Merciadri de Morini,
María Teresa re. Representation. The court’s decision in this case stated that, “the
30% quota should be in proportions that are likely to be elected, which
is to be understood as meaning a real or actual possibility thereof.”
In addition, the petitioner’s locus
standi was acknowledged and the electoral courts were informed that
pursuant to Article 60, first paragraph, of the National Electoral Code,
two women must appear among the first five places.
17.
Secondly, the State claimed that it did not fall to the
Commission to examine the composition of electoral lists.
It also stated that their composition could not be seen as
violating any of the rights enshrined in the Convention.
The State also cited the fourth instance doctrine, according to
which the Commission cannot serve as an appeals court for examining
alleged factual or legal errors committed by domestic courts acting
within the confines of their competence.
18.
In later submissions, the State included cases showing that
women’s rights were respected by the electoral justice system.
The State also reported that during the Commission’s processing
of the original petition, the petitioner had introduced issues unrelated
to it, such as the action brought by María Florentina Gómez Miranda;
the comparable incident during the 1997 elections, in which domestic
remedies had not been exhausted; and the third case she submitted, in
which the judiciary had ruled in the petitioner’s favor, thus
satisfying her claim before the domestic courts.
19.
The State reported that amendments to the Constitution were
introduced on August 24, 1994, under which the new Article 37, final
part, orders true equality of opportunities among men and women aspiring
to party and elected office, to be guaranteed through positive actions
in the regulation of political parties and in the electoral system. IV.
ANALYSIS OF ADMISSIBILITY
A.
The Commission’s competence ratione
temporis, ratione materiae, and
ratione personae
20.
The Commission is competent ratione
temporis [by reason of time] to hear this case since, firstly, the
petitioner maintains that the Argentine State incurred in international
responsibility through the decision handed down by its Supreme Court of
Justice on December 2, 1993, and that this took place after the State
had presented its instrument of ratification of the American Convention
to the General Secretariat of the Organization of American States on
September 5, 1984.
21.
Secondly, as regards its ratione
materiae competence [by reason of subject], the original petition
alleges violations of rights enshrined in Articles 8, 23, 24, and 25 of
the American Convention.
22.
Regarding its passive ratione
personae competence [by reason of the person], the petitioner claims
that the violations were committed by Argentina, a member state.
Regarding its active ratione personae
competence [by reason of the person], the petitioner claims that said
violations were committed to her own detriment and she described herself
as the direct victim thereof.
B.
Other requirements for the admissibility of the petition
a.
Exhaustion of domestic remedies
23.
The rule contained in Article 46(1)(a) of the Convention,
requiring that the remedies offered by domestic law first be pursued and
exhausted, stipulates that the substance of all petitions brought before
the Commission must have first been heard by the domestic courts.
This rule allows states to resolve disputes under their own legal
systems before facing international proceedings.
24.
In the case at hand, the Commission notes that the petitioner
invoked domestic remedies by presenting a complaint regarding the
omission of a position for women on the list of candidates put forward
by the Radical Civic Union for the October 3, 1993, elections.
After the petitioner had filed ordinary and extraordinary appeals
before the national judicial authorities, the suit was dismissed by the
Argentine Supreme Court. The State holds that in this case the remedies
offered by domestic law have been pursued and exhausted in accordance
with Article 46(1)(a) of the American Convention. For the reasons given above, the Commission concludes that
this requirement has been met.
b.
Filing period
25. Article
46 (1) (b) of the Convention stipulates that for a petition to be
admissible, it must be submitted to the Commission within six months of
the date on which the petitioner was notified of the final ruling.
The Commission notes that the final ruling was handed down by the
Supreme Court on December 2, 1993.
The petition was placed before the Commission on June 15, 1994,
within the six-month period. The
Commission concludes that this requirement has been met.
c.
Duplication of proceedings and res
judicata
26.
With regard to the requirement in Article 46(1)(c) of the
Convention, stating that the petition must not be pending settlement in
any other international proceeding, the Commission has received no
information indicating that any such situation exists.
The Commission therefore holds that this requirement has been
met. In addition, the
Commission also concludes that the requirement set forth in Article
47(d) has been met, in that this petition is not substantially the same
as any petition already studied by the Commission or ruled on by another
international organization. d.
Nature of the violations
27. Article
47(b) of the Convention rules that the Commission shall
consider inadmissible any petition or communication that “does not
state facts that tend to establish a violation of the rights guaranteed
by this Convention.” The petitioner claimed that as a result of
decisions handed down by the Argentine courts, the State violated the
rights of due process (Article 8), of participation in government
(Article 23), of equality before the law (Article 24), and of effective
recourse (Article 25), as set forth in the Convention.
The Commission believes that the facts alleged by the petitioner,
if proven true, could constitute violations of rights protected by the
American Convention. The
Commission therefore concludes that this requirement has been met.
V.
CONCLUSIONS
28. The Commission concludes that it
is competent to hear this case and that the petition is admissible,
pursuant to Articles 46 and 47 of the American Convention. 29. Based on the factual and legal
arguments given above, and without prejudging the merits of the case, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES: 1.
To declare this case admissible as regards the alleged violations
of Articles 8, 23, 24, and 25 of the American Convention;
2.
To notify the parties of this decision; 3.
To continue with its analysis of the merits of the case; 4.
To make itself available to the parties with a view toward
reaching a friendly settlement based on respect for the rights enshrined
in the American Convention, and to invite the parties to make a
statement regarding the possibility thereof; and, 5.
To publish this decision and to 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, in the city of Washington, D.C., on
September 27, 1999. (Signed):
Robert K. Goldman, Chairman; Hélio Bicudo, First Vice-Chairman;
Claudio Grossman, Second Vice-Chairman; and Commissioners Carlos Ayala
Corao, Alvaro Tirado Mejía, and Jean Joseph Exumé. [1]
The petitioner cites Article 60 (end of second paragraph) of Law
24.012. [2]
The petitioner cites Article 37 of the Constitution of the Nation,
which guarantees “full enjoyment of political rights.” [3]
This decision ruled on matters including the hierarchical position
of international human rights treaties in Argentina. [4]
File Nº 1836/95. [5]
File Nº 2779/96. [6]
Communication received on April 2, 1998.
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