REPORT
Nº 104/99 I.
SUMMARY
1.
On October 31, 1994, the Inter-American Commission on Human
Rights (hereinafter “the Commission,” “the Inter-American
Commission,” or “the IACHR”) received a petition from Josefina
Ghiringhelli de Margaroli and Eolo Margaroli (hereinafter “the
petitioners”) accusing the Argentine Republic (hereinafter “the
State,” “the Argentine State,” or “Argentina”) of having
violated the following rights protected by the American Convention on
Human Rights (hereinafter “the American Convention” or “the
Convention”): the right to a fair trial (Article 8(1) and the right to
property (Article 21). 2.
The petitioners state that they are the owners of real property
in Argentina’s Federal Capital, on which they began the construction
of an eight-story building for which the plans were approved by the
municipal authorities. A street-widening ordinance issued in 1979
affected the front of the property, requiring the demolition of the
unfinished building and making the sale of the planned commercial units
impossible. In 1981 the owners began an “inverse or irregular”
expropriation action against the Municipality of Buenos Aires and, in
1985, they obtained a final ruling in their favor. The petitioners also
claim that once execution of the sentence began, they received the first
payment in July 1985 and the municipality registered the law suit in
order to protect the unembargoable and unavailable status of the land in
question. After several formalities, a new ordinance in 1989 declared
the property unencumbered; it also reserved, in the municipality’s
favor, the right to recuperate what it had previously paid. The
petitioners challenged this measure in the courts, on the grounds of the
economic harm caused by the unavailability of their property. They
obtained a favorable ruling on appeal, which was then overturned by the
Supreme Court of Justice on April 12, 1994, with the chief argument that
the Appeals Court had violated the principle of reasonableness. 3.
The State recognizes that in accordance with international law,
the petitioners have pursued and exhausted the available domestic
remedies. However, the State claims that in their submission, the
petitioners argue “the unconstitutionality of Article 29 of Law Nº
21.499 (the Expropriation Law) and of Municipal Ordinance Nº 43.529/89
which unencumbered the property. This claim was not made before the
domestic courts and, consequently, with regard to it the domestic
remedies have not been exhausted.” It also claims that to exhaust this
through the domestic courts, the petitioners should have filed an
extraordinary remedy before the Supreme Court challenging the validity
of those laws. In addition, the State requests that this case be
declared inadmissible because it believes that the substance of the
petitioners’ allegations undermines neither the right to property nor
the judicial guarantees set forth in the Convention. 4.
In examining the admissibility of this case, the Commission
concluded that it is competent to hear it and that the petition is
admissible, pursuant to Articles 46 and 47 of the American Convention. II.
PROCESSING BY THE COMMISSION 5.
On October 31, 1994, the Commission received a petition from Eolo
Margaroli and his wife, Josefina Ghiringhelli de Margaroli, accusing the
Argentine State of violating Articles 8 and 21 of the American
Convention on Human Rights, dealing with the right to a fair trial and
the right to property, respectively. 6.
The Argentine State replied on May 4, 1995, that the change in
the principal element (from the declaration of eminent domain to its
suppression) led to a change in the accessory element, which the
petitioners do not accept. Consequently, there was no violation of the
right to property. In that same communication, the State said that the
petitioners have had access to every judicial instance for voicing their
claims. The petitioners submitted several replies to this communication
between June 28, 1995, and January 20, 1999. 7.
On July 25, 1995, the petitioners submitted the amicus
curiae opinion of Dr. Eugenio Raúl Zaffaroni, which maintains that
the State violated Article 21 of the Convention. On August 7, 1995, the
petitioners asked the Commission to begin friendly settlement
proceedings. On September 7, 1995, a hearing was held during the
Commission’s 90th regular period of sessions. On September 13, 1995,
the Commission made itself available to the parties with a view toward a
friendly settlement, under Article 48(1) of the Convention and Articles
45(1) and 45(2) of its Regulations. After two consecutive 30-day
extensions, on December 5, 1995, the State reported that it was unable
to consider the friendly settlement proposal. On March 5, 1996, the
petitioners asked the Commission to proceed with the formalities
indicated in Article 50 of the Convention. 8.
On November 2, 1997, the petitioners stated that after failing to
obtain a response to the friendly settlement proposal, processing of the
case in accordance with the Convention and the Regulations should
continue. On November 30, 1997, the State sent a reply expressing its
thanks for the offer of friendly settlement and noting that the
Argentine Republic could not “analyze and consider the friendly
settlement proposal.” Finally, on December 3, 1997, the Commission
recorded the termination of the friendly settlement process. The parties
later submitted additional information. III. POSITIONS OF THE PARTIES
A.
The petitioners
9.
The petitioners claim they are the owners of real property
located at Calle Raulet Nº 113/115/117, in Buenos Aires, upon which
they decided to build an eight-story building; the plans for this were
approved by the Municipality of Buenos Aires in 1977. Construction work
reached as far as the fourth floor of the building. 10.
In early 1979, the city of Buenos Aires enacted Municipal
Ordinance Nº 34.778/79, containing a general project for urban planning
and traffic management that affected several streets by removing the
fronts of property adjacent to them, including Calle Raulet. The
petitioners’ property located on that street was affected by the
removal of a six-meter strip of its street front. This ordinance, in
accordance with the Urban Planning Code, reduced the petitioners’
surface available for construction to 157.06 m2, i.e., by
88.63 percent. It also reduced the value of their real estate, making it
impossible for them to sell the units and apartments at the market
price. 11.
The petitioners allege that the removal of the strip led to a
widening of the street, forcing them to demolish most of the completed
construction because, since it was a single structure, it could not be
modified without compromising the stability of the entire building.
Therefore, in 1981, the petitioners filed a “total, inverse, or
irregular expropriation” lawsuit against the Buenos Aires municipal
government before Civil Court Nº 27 in the federal capital. 12.
A ruling handed down on June 11, 1984, accepted part of the
irregular expropriation sought and fixed amounts to be paid by the
municipality as compensation for the expropriation and as direct
damages. These payments were to be made within a period of 30 days. 13.
Both parties appealed against this ruling and, on April 22, 1985,
a ruling from Court D of the National Civil Appeals Chamber in the
capital upheld the first-instance decision and increased the amounts to
be paid as compensation. The appellate ruling also ordered: (1)
restitution for the expropriated strip (partial expropriation); and (2)
restitution of the direct damages caused; i.e., paying for the total
clearance of the section of land not expropriated, with the demolition
of the building and the removal of its foundations. To this end, the
court granted the Municipality of Buenos Aires a period of 45 days to
carry out this work or, alternatively, to pay the owners the necessary
costs. Said payment was to be made 30 days after the ruling had become
final. The municipality failed to make a correct appeal on time, and so
the ruling became final. In late 1985, the municipality made payment for
the strip of land affected by the expropriation ordinance and began to
carry out the terms of the sentence. 14.
The petitioners subsequently submitted the final bill for the
delays that arose in the payment of the expropriated strip. The
municipality deposited the corresponding check and asked for possession
of the expropriated land. The petitioners refused, since the demolition
ordered in the sentence had not been carried out. 15.
After a time, in order to secure possession, the Municipality of
Buenos Aires began steps in accordance with the option of paying the
cost of clearing the nonexpropriated land and asked the petitioners to
submit the invoice for the demolition costs, in compliance with the
obligation regarding paying for demolition costs set down in the Appeals
Chamber’s ruling. This invoice was finalized on March 14, 1989, with
which, according to the petitioners, “implementation of the sentence
was concluded.” According to the ruling of the Civil Chamber, in order
to clear the land, the municipality had to deposit the amount of the
final invoice within 30 days--i.e., before April 28, 1989--or be in a
state of legal default.
a.
The alleged violation of the right to a fair trial (Article 8(1) 16.
On April 20, 1989, the municipal executive and council enacted
Ordinance Nº 43.529/89 in order to remove the encumbrance on Calle
Raulet that had been imposed by Ordinance Nº 34.778/79, which had
modified the frontage of several streets and which gave rise to the
expropriation suit between the petitioners and the municipality. This
new ordinance revoked the declaration of eminent domain and,
consequently, the expropriation that had been ordered, by canceling the
removal of frontage on Calle Raulet. 17.
On April 28, 1989, the last day for the municipality to pay the
demolition costs, the municipal authorities refused to cover the amount
paid for clearing the land, arguing that the new ordinance constituted
“an extinguishment of the obligation.” It also argued that the
expropriation had not been concluded because possession had not been
surrendered. The petitioners claim that the municipality’s attitude
constitutes an application of the principle of estoppel, “in that by
taking actions it places the agent under the obligation of taking steps
actions toward performance of the actions required. This is then turned
around when the same body carries out a contrary action (the ordinance)
for noncompliance with the consequences of the first action.” 18.
The petitioners state that the new ordinance was published in the
Municipal Bulletin on May 9, 1989. They hold that the rule did not exist
when it was invoked by the municipality; it was therefore void of all
legal effect since the period allotted for payment of the demolition
costs expired on April 28, 1989. The rule that the municipality used to
excuse itself from that payment was published 11 days later, on May 9,
1989, and began to have legal effect (juridical existence) on the eighth
day following publication: May 17, 1989.[1]/
19.
They also claim that the ordinance was enacted with the sole
purpose of avoiding compliance with the final judicial ruling requiring
the municipality to pay the cost of demolishing the building, which had
already become res judicata. On August 2,
1989, a first-instance ruling was handed down, upholding the
extinguishment--i.e., the new ordinance that revoked the declaration of
eminent domain--and, consequently, canceling the expropriation. The
petitioners filed an appeal against this decision and, on June 11, 1991,
obtained a ruling from Court D of the National Civil Appeals Chamber
upholding the principle of res
judicata and thus overturning
the first-instance ruling. 20.
In light of this, the municipality filed a remedy of fact before
the Supreme Court. Ruling on April 12, 1994, the Supreme Court upheld
the municipality’s appeal and thus overturned the final, res
judicata ruling of April 22,
1985. It also validated the nonexistent ordinance and made it
retroactive, when it did not meet the conditions needed for such an
exception.[2]
Moreover, it ordered the petitioners to pay the costs of the action,
which they see as being a further violation of the terms of the law.[3]/ 21.
They thus hold that the violation of Article 8(1) of the
Convention arose from the ruling of the Argentine Supreme Court, which
did not respect res judicata and left the
petitioners in a clear situation of legal insecurity. They also hold
that the right to a fair trial was undermined by the State’s delay in
reaching a legal solution, thereby violating their right to a hearing
within a reasonable time.
22.
They similarly maintain that the ruling of April 22, 1985, had
the effect of res judicata
and its implementation began not only with the 1985 payment for the
expropriated strip but also with the municipality’s request that the
petitioners submit the invoice, the treatment given to it, and its
status as final.
b.
The alleged violation of the right to property (Article 21) 23.
The petitioners hold that over the years the dispute has lasted,
their rights have been curtailed, in that they have been unable to use
and enjoy their property, as have their expectations for full
compensation for the property they owned. When the judicial guarantee of
res judicata was extinguished,
their expectations vanished, as did their rights as landowners affected
by an expropriation. Not only were they not given the amounts ordered in
the inverse expropriation ruling; they also run the risk of surrendering
the amounts that were actually credited to them by the municipality.
24.
They maintain that their ownership has been affected and they
have been denied any claim over the expropriated strip. “The stoppage
of building work proves they have been denied the use and enjoyment of
the real property.” In addition, they claim that the declaration of
eminent domain itself made a significant proportion of their property
unsellable and prevented them from making use of the land.
25.
Similarly, they maintain that they never received fair
compensation for the denial of the use and enjoyment of their property.
They claim that the State’s actions were confiscatory in nature and
that their property “served neither the social interest nor eminent
domain; they only affected the right to property” of the petitioners.[4]
They hold that a declaration of eminent domain over a piece of real
estate causes limitations in or the loss of the right of property, but
in enforcing it the State must respect its own domestic rules and,
particularly, the provisions of international law. In light of this, the
petitioners believe that their right to property, as set forth in
Article 21 of the American Convention, was violated, and they provide a
breakdown of the damage, legal costs, and other expenses.
26.
They invoke the principle that “exceptions or limitations
cannot surpass basic law” and add that the Argentine State has used
exceptions as if they surpassed the basic law guaranteed in Article 21
of the Convention by stating that the declaration of eminent domain is
the basic law and its suppression an accessory element thereto.[5]
Moreover, they maintain that the State has interpreted in bad faith the
rights that it is obliged to both respect and guarantee. They argue that
general principles of law cannot be used to affect rights protected by
Convention, because it is clear that the State has been unable to
respect and guarantee them.[6]
27.
The petitioners state that they do not want to undermine the
State’s discretionary right to conduct economic, social, and cultural
policies, but rather to show that the principles followed in the case
are unreasonable. A fair balance between the general interest and basic
rights is missing. As regards the exhaustion of domestic remedies, the
petitioners hold that the State’s claim regarding the
unconstitutionality of Article 29 of Law 21.499 (the Expropriation Law)
and Ordinance 43529/89 is untrue. They claim that the State has
illegitimately changed the object of their complaint, which is based on
the aforesaid legal elements, and they believe it was the Supreme
Court’s ruling that violated their rights. In addition, they maintain
that domestic remedies were exhausted.
28.
As regards taking possession of the property, the petitioners
state that the municipality was obliged to take possession and yet
failed to do so, and so it cannot therefore benefit from its failure to
act to the detriment of the petitioners, who claim to have met their
obligations. Finally, the petitioners maintain that their right to a
fair trial was undermined by the State’s delays in reaching a legal
solution and its violation of the right to a hearing within a reasonable
time.
B.
The State
29.
In its first reply, the State asks for this case to be declared
inadmissible because it believes that the substance of the
petitioners’ allegations affected neither the right to property nor
the judicial guarantees set forth in the Convention. 30.
It also points out that the ruling of the National Appeals
Chamber on April 22, 1985, made amends to the petitioners, to wit:
“The municipality would demolish the constructions in place on the
land, removing the piles that had been installed to preserve the
security of the building being erected in order to leave the land
perfectly available and free of all obstacles, within a period of 45
days, or alternatively, credit the cost of that work, at the option of
the Municipality of Buenos Aires.” It thus maintains that said amends
were “a part of and accessory to the compensation for the
expropriation, as direct damage arising therefrom.” 31.
The State also notes that the municipality chose to pay the cost
of demolishing the building “on account of a lack of the technical
wherewithal to carry it out. In this connection, Ordinance Nº 43.529/89
was enacted, unencumbering the property.” The State alleges that the
municipality complained about this “extinguishment” at trial and the
first-instance court, in its ruling of August 2, 1989, upheld the
complaint made by the Municipality of Buenos Aires in accordance with
the terms of Article 29 of the Expropriation Law, Nº 21.499. Thus, the
State maintains that “the expropriation that had not been finalized
was revoked.” 32.
In connection with the petitioners’ request for demolition, the
State notes that “Mr. Eolo Margaroli continued to implement the
Chamber’s ruling in the hope of receiving payment for demolition and
pile-extraction tasks that should not have been carried out since there
was no expropriation. “The petitioners submitted an invoice, which was
challenged by the Municipality of Buenos Aires because there was no
reason for it. In spite of these arguments, the first-instance judge
admitted the claim and the Appeals Chamber upheld that decision, albeit
ruling that “the existence or not of the reason for execution should
not be discussed when challenging the invoice, but rather when the
objections to implementation are made.”
33.
The municipality filed an objection alleging “false
implementation” on the grounds that there was no reason for it since
the process had terminated when the “extinguishment” had lifted the
encumbrances from the property. The first-instance court and the
National Civil Appeals Chamber overruled this objection, and so the
municipality took the case to the Supreme Court. The Supreme Court
overturned the Chamber’s ruling because “it was not reasonably
derived from current law”; consequently, the Chamber handed down a
second ruling rejecting the implementation sought by the petitioners. 34.
The State accepts that the petitioners have pursued and exhausted
the available domestic remedies in accordance with international law.
However, the State notes that in their submission, the petitioners refer
to “the unconstitutionality of Article 29 of Law Nº 21.499 (the
Expropriation Law) and of Municipal Ordinance Nº 43.529/89 which
unencumbered the property. This claim was not made before the domestic
courts and, consequently, with regard to it the domestic remedies have
not been exhausted.” The State says that this question should have
been addressed by filing an extraordinary remedy before the Supreme
Court to challenge the validity of those provisions. 35.
The State further notes that the petitioners began another suit
against the Municipality of Buenos Aires, which was heard by the same
court and through which they sought damages equal to the loss of the
profits they would have earned by building and selling the apartments in
question. The ruling in this case rejected these claims and turned down
all and any claims for damages. 36.
To support its position that the right to property was not
violated, the State uses the same arguments as the Argentine Supreme
Court’s ruling of April 12, 1994. Thus, the State holds that “the
change in the principal element--from the declaration of eminent domain
to the suppression of that classification--led to a change in the
accessory element that the petitioner seems reluctant to accept.” And
it concludes that no harm was done to the petitioners’ right to
property. 37.
The State also holds that in no way was the right to a fair trial
harmed. It claims that harm “has not occurred at any moment in the
proceedings, since not only has there been no denial of access to any
court of law, but also in each of them he--the petitioner--was able to
make his claims and state his rights.” In later submissions, the State
maintains that no harm was done to the right to property or the right to
a fair trial. Moreover, it states that the property on Calle Raulet
“is not and never was subject to any declaration of public utility.” 38.
Regarding the petitioners’ request for compensation, the State
holds that both Ordinance Nº 43.529 of April 20, 1989, and the
judge’s ruling removed the encumbrance from the property.
Consequently, the petitioners cannot “receive any compensation
intended to make amends for the declaration of public utility, because
the alleged declaration of public utility does not exist.” 39.
The State reports that there is no reason whatsoever to cancel
the amount set for the demolition of the construction erected on the
property, because no demolition is required since the property is under
no encumbrance. On the contrary, it believes the petitioners should
reimburse the compensation paid for the expropriated strip of land
since, pursuant to Ordinance Nº 43.529, the reason for said
compensation does not exist. 40.
The petitioners’ right to property, the State maintains, has
been affected in no way at all; the property is under no encumbrance,
and the owners enjoy full ownership of it. Moreover, the State holds
that the owners “were at no time restricted in the use, enjoyment, and
disposal of the property.” 41.
Based on these arguments, the Argentine State concludes that the
complaint does not meet the requirements for generating international
responsibility set forth in Article 47 of the Convention and in Article
41 of the Commission’s Regulations.
IV.
ANALYSIS OF ADMISSIBILITY
A.
The Commission’s competence ratione
temporis, ratione materiae, and
ratione personae 42.
The Commission believes it is competent to hear this case. First,
as regards its ratione temporis
competence [by reason of time], the petitioners maintain that the
Argentine State is internationally responsible on account of the ruling
handed down by its Supreme Court of Justice on April 12, 1994, which
took place after the State had placed its instrument ratifying the
American Convention before the General Secretariat of the Organization
of American States on September 5, 1984. 43.
Secondly, as regards its ratione
materiae competence [by reason of subject], the petition refers to
alleged violations of rights enshrined in Articles 8(1) and 21 of the
American Convention arising from the rulings handed down by the judicial
authorities that heard the suit filed against the Argentine State. 44.
Regarding its passive ratione
personae competence [by reason of the person], the petitioners
accuse Argentina, a member state, of committing these violations. As
regards its active ratione personae competence, the petitioners allege that the
violations committed caused them harm, thus identifying themselves as
the direct victims of said violations.
B.
Other requirements for admissibility a.
Exhaustion of domestic remedies 45.
The Commission has, in the past, emphasized the “accessory and
complementary” character of the inter-American human rights protection
system. This character is expressed by provisions including Article
46(1)(a) of the Convention, which requires that “remedies
under domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law.” This rule
allows states to resolve disputes under their own legal systems
before facing international proceedings. 46.
In this case, the petitioners claim they exhausted the domestic
remedies applicable to the alleged violations, and the State expressed
its acceptance of that claim by stating that with the Supreme Court’s
ruling--which ruled on the validity of the new extinguishment alleged by
the municipality--the remedies offered by domestic jurisdiction were
exhausted. 47.
However, the State notes that the petitioners also challenged the
constitutionality of Ordinance Nº 43.529/89 and of Article 29 of Law Nº
21.499 (the Expropriation Law) before the Commission and that “this
claim was not made before the domestic courts and, consequently, with
regard to it the domestic remedies have not been exhausted”
(Commission’s emphasis). It adds that the petitioners should have
filed an extraordinary remedy before the Supreme Court of Justice to
challenge the legality of those provisions. 48.
The petitioners report that, “the claim made by the Argentine
State in its reply that we challenged the constitutionality of Article
29 of Law 21.499 and of Ordinance 43.529/89 is untrue.”[7]
They also note that, “it was the ruling of the Argentine Supreme Court
that upheld the eminent domain and the confiscation of the property and
that affected the judicial guarantees.” With this statement, the
petitioners confirm that the domestic remedies were exhausted. 49.
The Commission will now analyze, first, whether the remedies
exhausted by the petitioners before the domestic courts were
appropriate; and, second, whether the extraordinary unconstitutionality
appeal was appropriate for resolving the violations. First of all, from
its analysis of the case file, the Commission believes that the domestic
remedies were exhausted in this case, noting that after a municipal act
affected a strip of land belonging to them, the petitioners filed a
total “inverse or irregular” expropriation action. This claim was
admitted in the petitioners’ favor and partially implemented by means
of payment for the expropriated strip of land, and they later requested
implementation of the provisions regarding “payment for the demolition
and removal of the piles” by submitting the corresponding invoice.
50.
However, after this request for implementation of the sentence
was made, the municipality filed a “false implementation” objection,
arguing that there was no reason for it since the process had terminated
with the “extinguishment” of the obligation through the ordinance
unencumbering the strip of land. The first-instance court ruled in the
municipality’s favor and the National Civil Appeals Chamber overturned
that decision, rejecting the municipality’s objection and ruling in
the petitioners’ favor. 51.
The Commission believes that after obtaining a favorable ruling,
the petitioners had no need to pursue any other remedy. It was the
municipality, after its claims were rejected, that filed the
“extraordinary” and “complaint or factual” remedies in order to
obtain a favorable decision, which occurred when the Supreme Court
upheld the latter. Thus, the Supreme Court of Justice of the Nation
overturned the ruling handed down by the Chamber that was favorable to
the petitioners. 52.
In these circumstances, with the existence of a Supreme Court
ruling on a complaint filed by the municipality, the Commission believes
that this ruling is final and exhausts the domestic remedies as regards
the petitioners’ claims. In addition, it must be noted that the State
has not claimed that the judicial remedies filed by the petitioners and
exhausted by the Supreme Court’s ruling were not appropriate for
resolving its situation. 53.
Secondly, regarding the exhaustion of the extraordinary
unconstitutionality remedy referred to by the State, the Commission
recognizes that in some cases unconstitutionality remedies, which are in
principle extraordinary, offer appropriate and effective remedies for
human rights violations. In the case at hand, however, the State has
neither claimed nor shown that a decision on the unconstitutionality of
Article 29 of Law 21.499 and Ordinance 43.529/89 would have in any event
resolved the alleged violations described by the petitioners.
54.
Finally, considering that the substance of the petition does not
address the unconstitutionality of the laws applied in this case, and
that in any event the State has failed to show that the
unconstitutionality resource was appropriate for remedying the
violations described by the petitioners, the Commission concludes that
in this case, the requirement of prior exhaustion of the domestic
remedies set forth in Article 46(1)(a) of the American Convention has
been met.
b.
Filing period
55.
Article 46(1)(b) of the
American Convention states that for a petition to be admitted it must be
“lodged within a period of
six months from the date on which the party alleging violation of his
rights was notified of the final judgment.” The Commission notes that
the Supreme Court’s decision was handed down on April 12, 1994,
and the petitioners first appealed to the Commission on October 31,
1994. In turn, the State has made no statements in this regard. The
Commission therefore believes that the petition was submitted within the
six-month period stipulated by Article 46 of the American Convention.
c.
Duplication of proceedings and res
judicata 56.
Article 46(1)(c) states that
for a petition or communication to be admissible, it must not be pending
in any other international settlement proceedings. Similarly, Article
47(d) of the Convention says that any petition that is substantially the
same as one previously studied by the Commission or another
international organization shall be declared inadmissible. The
Commission understands that the subject of this petition is not pending
any other international settlement and that it is not the same as any
other petition that has already been examined either by itself or by
another international agency. Thus, the requirements set forth in Articles
46(1)(c) and 47.d have been met.
d.
Nature of the alleged violations
57.
The Commission believes that, in principle, the petitioner’s
arguments describe facts that, if true, could possibly constitute
violations of the right to a fair trial (Article 8(1) and the right to
property (Article 21) set forth in the Convention. Consequently, the
Commission holds that the requirement set in Article 47(b) of the
American Convention has been met. V.
CONCLUSIONS
58. The Commission believes that it
is competent to hear this case and that the petition is admissible,
pursuant to Articles 46 and 47 of the American Convention.
59. 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. 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. 5.
To publish this decision and to include it in its Annual Report
to the OAS General Assembly. Given and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on September 27, 1999. Robert K. Goldman, Chairman; Helio Bicudo, First Vice-Chairman; Claudio Grossman, Second Vice-Chairman; Commissioners Carlos Ayala Corao, Jean Joseph Exumé and Alvaro Tirado Mejía. [1]
To show this, the petitioners cited Article 2 of the Civil Code:
“Laws shall not be binding until after their publication, and as
of the stated day. If no day is stated, they shall become binding
eight days after their publication.” [2]
The petitioners cited Article 3 of Argentina’s Civil Code:
“After they have come into force, laws shall apply even to
existing legal situations and relationships. They shall not have
retroactive effects, regardless of whether or not they deal with
public order, except if otherwise stipulated. Legally established
retroactiveness may in no instance affect rights protected by
constitutional guarantees. New supplementary laws shall not apply to
contracts that are already being performed.” [3]
The petitioners cited Law Nº 21.499 (Expropriation Law), Article 29
of which states: “The expropriator may withdraw from the action
while the expropriation has not yet been finalized. The costs shall
be met by him. An expropriation shall be considered finalized when
transfer of ownership to the expropriator has taken place by means
of a final ruling, the taking of possession, and the payment of
compensation.” [4]
The petitioners cited the jurisprudence of the European Court of
Human Rights in the case of James and Others, February 21, 1986. [5]
In connection with this, they cited the jurisprudence of the
European Court in Sporrong and
Lönnroth and in Ashingdane,
Series A, Nº 93. [6]
The petitioners cited the doctrine laid down by the Inter-American
Court of Human Rights in OC-5/85, page 39, paragraph 67. [7]
Communication from the petitioners dated June 28, 1995. |