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REPORT Nº 27/00CASE 11.755
CARLOS A. LÓPEZ DE BELVA AND
ARTURO J. PODESTÁ
ARGENTINA
March 7, 2000
I.
SUMMARY
1.
On June 2, 1997, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) declared the admissibility of the
petition lodged by Carlos A. López De Belva and Arturo J. Podestá
(hereinafter “the petitioners”) in which they allege violations of
their human rights by the Argentine Republic (hereinafter “the
State” or “Argentina”).
2.
The petitioners allege being victims of human rights violations
resulting from a corporative reaction of the judges of Buenos Aires
Province due to the disciplinary action they brought against several of
them for malfeasance. The
case refers to a variety of legal proceedings promoted before different
tribunals on three separate suits--a civil action, a disciplinary one
against several judges, and a criminal trial,
all of which were a result of the intervention of the petitioners
as attorneys for Amílcar Cascales. Mr. Cascales filed a cross-complaint
in the civil action against him in La Matanza Municipality, Buenos Aires
Province, and obtained a favorable judgment against the plaintiff, who
was ordered to pay damages. However,
during the execution stage, a challenge on the installments already paid
arose, and, thus, its continuation was indefinitely suspended--a
situation that has continued until now, thirteen years later.
The same challenge gave ground to bringing criminal charges
against the petitioners, which concluded in a conviction, and induced
the petitioners to seek disciplinary action against the judges.
3.
In summary, the petitioners allege that Argentina, in the course
of the three different sets of proceedings, has violated various of
their rights protected by the Convention.
They maintain that in the civil proceeding, the judge acted in
excess of her powers by ordering the auditing of the payments already
made and by prohibiting the resumption of the execution.
These decisions gave grounds for the subsequent criminal action
brought against the petitioners and others.
Moreover, the petitioners argue that in the criminal proceedings
they were convicted for a nonexistent crime, they were prevented from
fully exercising their right of defense because of their being barred
from examining “various witnesses,” they were given a double penalty
despite it was termed as merely an accessory one, and they were unable
to appeal the conviction because of the restrictions imposed on them by
the procedural law applicable to the case.
On the basis of these facts, they specifically allege to be
victims of violations of their right to a fair trial, of the principle
of legality, and of their right to judicial protection, enshrined in
Articles 8, 9, and 25, of the American Convention on Human Rights
(hereinafter “the Convention”).
4.
Without prejudging on the merits of the matter, the Commission
finds that the case meets the admissibility requirements set forth in
Articles 46 and 47 of the Convention, solely with regard to the civil
and criminal proceedings. Consequently, the petition is admissible with
respect to the allegations regarding a possible violation of the rights
established in Articles 8, 9 and 25 of the Convention; and it is
inadmissible insofar as the disciplinary proceeding promoted against the
judges, since the admissibility requirement stipulated in Article
46(1)(b) of the Convention is not met.
II.
PROCESSING BY THE COMMISSION
5. The Commission omits
making a detailed account on the copious exchange of communications
produced in the instant case. The record also contains several amicus
curiae and communications conveyed by different non-governmental
organizations, Argentineans and otherwise, in support of the
petitioners.
6.
The petitioners lodged their petition before the Commission on
September 29, 1992. By
communications dated September 27, 1995 and December 19, 1996, the
Executive Secretary of the Commission informed the petitioners that the
petition could not be processed, based on the provisions of Article
47(b) of the Convention. Between September 26, 1996 and June 2, 1997,
the petitioners reported to the Commission a series of new facts
relevant to the petition. Accordingly,
on June 2, 1997, the Executive Secretariat of the Commission notified
the petitioners that it had initiated the processing of the petition
based on these new facts.
7.
The State has sent communications about the case on six
occasions, all of which have been transmitted to the petitioners. Also,
the State was assured its procedural right to rejoinder. Furthermore, on
October 6, 1997, during the Commission’s 97th Session, a hearing was
held with the participation of the parties’ representatives.
III.
POSITIONS OF THE PARTIES
A.
Undisputed facts
a.
The civil action
8.
On August 12, 1974, the Municipality of La Matanza, Buenos Aires
Province, sued Amílcar Cascales for damages resulting from an alleged
breach of contract in the lease of a cold storage plant located in San
Justo, Buenos Aires Province. Amílcar Cascales was represented by the
petitioners and filed a cross-complaint. Twelve years later, on June 12,
1987, he obtained a favorable adjudication by Ricardo Angel Kaul, Judge
of the Fourth Court for Civil and Commercial Matters of the Judicial
Department of General San Martín, Buenos Aires Province.
The verdict found the plaintiff, the Municipality of La Matanza,
liable to pay compensatory damages resulting from “reckless and
malicious” conduct.
9.
That sentence became res
judicata and a proceeding for enforcement of staggered payment of
the compensation was initiated, under the “silence or inaction of the
debtor”.
This proceeding continued in a systematic manner for around two years
(approximately 200 payments
were approved and made). Upon the death of Judge Ricardo Angel Kaul, his
vacancy was filled by three successive pro
tempore judges until Judge María Inés Oderay Longhi was appointed
as the new permanent judge. During that whole period, settlements,
orders, and payments continued to be issued. Judge María Inés Oderay
Longhi herself issued eleven checks between September 3, 1990 and the
following October 30. One of the pro tempore judges who took cognizance of the case was Judge Carmen
Cabrera de Carranza. In May 1990, she “determined that, as of that
date, the settlements contained no mathematical errors”.
However, the situation was apparently complicated by the hyperinflation
that was then sweeping Argentina.
10.
On November 5, 1990, Judge María Inés Oderay Longhi ordered the
auditing of all the settlements made, pursuant to Article 36 of the Code
of Civil and Commercial Procedure. The expert’s report found a loss to
the detriment of the Municipality of La Matanza in the amount of
14,926,700,603.62 australes, at October 1990 values. This was due to an
incorrect calculation in the settlements, and to the fact that “the
mechanism used [in the context of the extremely high inflation and
interest rates existing in Argentina at the time] produced a cumulative
effect on the interests, which was causing the debt to grow
disproportionately”.
At the same time, the judge suspended de
facto the payment procedure. On
August 31, 1992, the judge issued a ruling prohibiting renewal of the
enforcement of the adjudicatory sentence and all incidental proceedings
connected therewith. The effects of such ruling have continued to this date, with
the sole exception that at the end of 1999, judicial approval of the
accounting expert’s report in the civil proceeding was revoked by the
Civil Court of Appeals, and another audit report was requested.
b.
The criminal trial
11.
Based on the findings of the audit, criminal charges were filed
against the petitioners and other persons under the charge of defrauding
the public administration, and against the later deceased Judge Ricardo
Angel Kaul for breach of public duty. Three legal counselors and an
accountant of the Municipality of La Matanza were also charged.
12.
The Fifth Criminal Court of San Martín delivered a judgment on
March 1, 1993, in which it found the petitioners guilty of being
accessories to the crime of attempted fraud of the public administration
and sentenced them to two years and nine months imprisonment as a
principal punishment, and ordered special disqualification barring them
from practicing law for eight years as a cumulative penalty. The Court
also notified the judge of the Fourth Departmental Court for Civil and
Commercial Matters in charge of approving the execution payments, of the
conviction of the petitioners.
13.
The petitioners unsuccessfully lodged recurso
extraordinario, de inaplicabilidad de la ley, de
nulidad and de
inconstitucionalidad, before
the Supreme Court of Buenos Aires, to contest the conviction issued by
the First Tribunal of the Chamber of Appeals for Criminal and
Correctional Matters of San Martín, dated December 26, 1995, which
upheld the judgment of the lower court. Having exhausted remedies under
the provincial jurisdiction, the petitioners took their case to the
Supreme Court of Justice of Argentine where they filed a recurso extraordinario and a recurso
de queja, which were denied. The case against the other codefendants
continues before the Supreme Court of Justice of Buenos Aires, but the
petitioners have been deprived of their right of standi to continue participating in legal proceedings, due to the
application of the restriction imposed by article 350 of the Code of
Criminal Procedure of the Province of Buenos Aires in force at the time.
Furthermore, that same court decided on December 29, 1999, that the
judgment and the conviction issued against the petitioners was
definitive, and it has ordered its enforcement.
c.
The disciplinary action against the judges
14.
Towards the end of 1990, the petitioners filed for a disciplinary
action against Judge María Inés Oderay Longhi and the judges of the
First Court of the Chamber of Appeals in and for the Judicial Department
of San Martín. On April 16, 1991, the Jurado de Enjuiciamiento de Magistrados of the Province of Buenos
Aires issued a decision acquitting all the judges. The petitioners
lodged a recurso de queja
before the Supreme Court of Buenos Aires, which was denied on June 11,
1991. A similar appeal was submitted before the Supreme Court of
Argentine, but was turned down on April 21, 1992.
B.
Position of the Petitioners
15.
They submit that the decision of Judge María Inés Oderay Longhi
to order the auditing of the compensatory installments already paid, and
to suspend de facto the
execution of the award granted by her predecessor on June 12, 1987,
“exceeded her competence since a final judgment had already been
issued and there were no facts in dispute.” They also maintain were
neither heard in their capacity as party, nor permitted to exercise the
rights of defense, nor allowed either to participate actively in, or to
monitor, the audit.
16.
They report that they lodged motions “for clarification, for
appeal, recusations, and motions to challenge jurisdiction and to
request dismissal for lack of jurisdiction,” as well as the recurso
extraordinario and de queja
before the Supreme Court of Justice of Argentine, all of which were
unsuccessful.
17.
They claim that there was interference by the Provincial
Executive Branch in the judicial processing of the judges disciplinary.
They also contend that the process was contrary to the relevant law
(provincial law 8085); that the charge was rejected in limine, declaring their attitude “as reckless and malicious”;
and “they were ordered to pay exorbitant professional fees for the
justices of the case”. Also, they contend that their appeals were
rejected at every competent level.
They further argue that in the decision handed down by the Jury
de Enjuiciamiento de Magistrados, the amount established as the
professional fees for each of its members was high (equivalent to US$
1,800.00), exceeding the usual judicial practice and the standards of
reasonableness. Moreover,
as a result of the adverse sentence, they were sued for damages by two
of the judges against whom they brought charges (Olcese and Uhart), who
alleged psychological harm and injury to their reputation, thus
“obtaining attachments of the petitioners’ properties for more than
US$500,000. This is an amount without precedent in Argentine case law,
and is interpreted by the petitioners as a deterrent measure and a
corporative reaction.”
18.
They question the grounds for the criminal charges brought
against them. They claim
that the compensatory payments were requested by
them, latter
ultimately --by its approval--made those settlements legally valid. They
further allege as follows: that
they were convicted for a nonexistent crime; that in the criminal trial
they were not allowed to cross-examine the “various witnesses”
called by the court; that the experts who performed the audit
“acknowledged in court that they had made a mistake, but that the
judge failed to take that admission into account”; that a cumulative
penalty was imposed which actually was tantamount to a parallel
principal one, with the aggravating circumstance that said penalty was
not sought by the prosecution, was not the subject of debate, and was
not supported by evidence submitted in the proceeding, that the
petitioners were not given an opportunity to defend themselves against
its imposition, and it expressly violates the guarantees of due process;
that they could not appeal their conviction, since Article 350 of the
Code of Criminal Procedure of the Province of Buenos Aires, in effect at
that time, was applied, by virtue of which the criminal proceedings
against the other codefendants currently continues before the Supreme
Court of Buenos Aires, “[while] we are no longer considered a party to
them [and so we do not have the legal capacity and right of defense in
these proceedings]”, and the same court ruled on December 29, 1999
that the conviction ruling has become res
judicata; and, that judicial approval of the audit report in the
civil proceeding was revoked by the Chamber of Appeals for Civil
Matters, situation which might imply the removal of the basis for their
conviction.
C.
Position of the State
19.
It has centered its position on arguing that the case is
inadmissible, both on the basis of failure to exhaust domestic remedies
in accordance with the requirements laid down in Article 46(1)(a) of the
Convention, and in conformity with the provisions contained in Article
47(d) of the Convention. In light of the fact that the substance of the
case is being examined and decided by the judicial authorities of
Argentina, and that certain of its aspects do no longer fall within the
competence of the Commission, the State has not established its position
on the substance of the case, or contested in detail the petitioners’
allegations. In its letter
of September 17, 1997, it “reserved its right to consider in future
the issues of fact and of law involved in the case, if it becomes
necessary.”
20.
It believes that there is a direct link between the merit of the
allegations on the supposed violations of the right to a fair trial and
the requirement of exhaustion of domestic remedies.
“It is clear that the exercise of this right [to a fair trial]
is improved through the ample possibility of reviewing all decisions
issued throughout court proceedings, by means of the review organs
[within the domestic jurisdiction].”
21.
It submits the following:
As
to the nature of the domestic remedies to be pursued [which in the
opinion of the State were not exhausted by the petitioners up to the
date of the communication in question, i.e., January 4, 1999], a juris
tantum presumption, according to which remedies exist and are
adequate and effective, is recognized, except in the case of
specifically established exceptions. […]
Thus, in this petition, […] it is a fact that none of them has
been omitted by the complainants [petitioners].
IV.
ANALYSIS
A.
Competence of the Commission ratione
materiae, ratione personae,
ratione temporis and ratione
loci
22.
The Commission is competent on the case. The facts alleged by the
petitioners refer to the purported violation of the rights of
individuals resulting from actions imputable to Argentina that
supposedly occurred within its territorial jurisdiction after the
Convention entered into force for the State.
23.
As far as the civil proceeding is concerned, the Commission takes
note of the fact that the plaintiff is Amílcar Cascales and that the
petitioners acted as his attorneys. However, the audit performed within
that proceeding was used as the basis for the criminal action carried
against the petitioners. As a result, the Commission considers that the
scope of its competence to consider the civil proceeding is limited
exclusively to the aforesaid audit report, its revocation, and its
replacement by another one, since it considers that the effects of those
incidents should be consistent with the decision made in the criminal
proceeding.
B.
Other admissibility requirements
a.
Exhaustion of domestic remedies
24.
The instant case concerns three different judicial proceedings
which have taken place within Argentina’s jurisdiction. The following
analysis examines fulfillment of the admissibility requirements in
respect of each of those judicial proceedings.
25.
With reference to the civil proceeding, the State holds that
“the judgment of June 12, 1987 is final and is favorable to the
complainants [petitioners].”
With regard to the enforcement proceeding, the Commission finds that it
is merely a procedural stage derived from the main sentence that has
acquired the force and effect of res
judicata. Moreover, the criterion that a final judgment and its
enforcement be procedurally joined forms part of the right to an
effective recourse provided by Article 25 of the Convention.
Accordingly, the recognition by the State applies as an extension to the
enforcement proceeding, particularly since the State has made no
distinction between the two. Consequently, domestic remedies are
exhausted in respect of the principal and accessory sentences.
26.
As regards the criminal trial, the Supreme Court of Justice of
Argentine has dismissed, by its decision of March 31, 1999, the recurso de hecho filed by the petitioners, and they are legally
impeded by article 350 of the Code of Criminal Procedure of the Province
of Buenos Aires (then in force) from participating in the continuation
of the proceeding against the other codefendants. The Supreme Court of
Buenos Aires has decided on December 29, 1999, that the conviction of
the petitioners has become res
judicata. Consequently, domestic remedies in this respect have been
exhausted.
27.
As to the disciplinary action before the Jury
de Enjuiciamiento de Magistrados, the State, in its communication of
July 6, 1994, has admitted the fulfillment of the requirement in
question. It refers to the
decision of the Supreme Court of Justice of Argentine dated April 21,
1992, which rejects the recurso de
queja filed by the petitioners against the decision of the Supreme
Court of Buenos Aires.
b.
Deadline for lodging the petition
28.
The petition was admitted by the Commission on June 2, 1997.
The declaratory stage of the civil proceedings was exhausted with
the judgment of June 12, 1987, and its execution was halted by the
judicial order issued on August 31, 1992, a situation which has
continued up to the date of this report.
According to any standards of analysis, the mere fact that this
civil proceeding was instituted in 1973, and that twenty-seven years
later it has not yet been fully executed, and that the enforcement
process has been impeded by an act imputable to the State for about
seven and a half years, justifies the application of the exception to
this admissibility requiremen established in Article 46(2)(c) of the
Convention.
29.
As for the criminal trial, domestic remedies were exhausted on
March 31, 1999, subsequent to the date on which the Commission admitted
the petition for processing. Consequently, the requirement established in Article 46(1)(b)
of the Convention has been met in this regard.
30.
Concerning the disciplinary action against the judges, the
remedies under domestic law were exhausted with the ruling of the
Supreme Court of Justice of Argentine dated April 21, 1992.
Hence, the admissibility requirement set forth by Article
46(1)(b) has lapsed, and consequently the case in inadmissible on this
point.
c.
Duplication of proceedings and res
judicata
31.
The State has repeatedly held that the fundamental aspects of the
petition are inadmissible “since the petition is substantially the
same as the one [lodged on
September 29, 1992] previously
examined and decided on by the Commission”. To support this
submission, the State invokes Article 39 of the Rules of Procedure of
the Commission, which defines the scope of Article 47(d) of the
Convention.
32.
The supposed decision by the Commission invoked by the State, is
proven--in its opinion--by the two communications sent by the
Commission’s Executive Secretariat to the petitioners, dated September
27, 1995 and December 19, 1996. In these communications, the petitioners
are advised that the Commission cannot continue to process the petition
“[because] the facts related in your communications do not
characterize a violation of any right protected by the Convention
[…].”
33.
The Commission notes that after the dates of the above-mentioned
communications of its Executive Secretariat, various new facts relevant
to the case have come to light, both within and as direct actions of
Argentine’s jurisdiction. On
such basis, the Commission opened the case on June 2nd 1997.
34.
The exception based on “new facts” is frequently employed in
the procedural practice of the Commission; however, there is a lack of
precedents to define its scope. In the procedural practice of the
European system of human rights, “declarations of inadmissibility on
the ground of the identical character of two or more cases submitted to
the Commission do not occur frequently”.
Furthermore, “[if] an application has been declared non-admissible
because of non-exhaustion of local remedies [the] fact that the remedy
concerned has finally been exhausted constitutes ‘relevant new
information’ which precludes the Commission from declaring the
application inadmissible as being substantially the same [as another
examined previously …]”.
When excessive delay of domestic remedies is alleged, the time elapsed
between the first and second petition “in itself, constitutes a new
fact.”
35.
In the case under review there is no evidence that it is substantially the same than a previous petition lodged before another
competent supranational organization.
The Commission concludes that the case under review contains
references to new facts that make it different from the previous
petition lodged on September 29, 1992.
The admissibility requirement stipulated in Article 47(d) of the
Convention is therefore fulfilled.
36.
The Commission further concludes that there is no evidence that
the case is pending in another international proceeding for settlement,
as stipulated in Article 46(1)(c) of the Convention.
d.
Characterization of the alleged facts
37. The facts alleged by the
petitioners are described in considerable detail and supported with
documents. By contrast, the State has still neither disputed the facts
submitted by the petitioners, nor presented to the Commission
information that makes it possible to question their veracity.
Furthermore, the Commission notes that the State has not expressly
sustained that the facts alleged by the petitioners do not either tend to establish, nor actually establish, violations of the rights
guaranteed by the Convention.
38.
The Commission finds that, should the facts alleged by the
petitioners be confirmed, the case, insofar as its civil and criminal
proceedings are concerned,
could meet the standard of admissibility provided in Article 47(b) of
the Convention, on the grounds of tending to establish violations of
Articles 8, 9 and 25 of the Convention.
V.
CONCLUSIONS
39.
The Commission concludes that it is competent to seize this case,
in matters related to the civil proceeding (exclusively with regard to
the audit report, its revocation, and replacement) and to the criminal
proceeding, and that it is admissible on these counts, pursuant to
Articles 46 and 47 of the Convention.
Also, the Commission concludes that it is not competent to take
cognizance of the allegations related to the disciplinary action against
the judges in the Jury de
Enjuiciamiento de Magistrados, since the admissibility requirement
set forth in Article 46 (1)(b) of the Convention has not been met.
Based
on the foregoing factual and legal arguments and without prejudging the
merits of the matter,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1. To declare
admissible the instant case in regards to the alleged violations of
Articles 8, 9, and 25 of the Convention related to the criminal
proceeding, and to the part of its civil proceeding concerning
exclusively the audit report, its revocation, and replacement; and to
declare it inadmissible in relation to the disciplinary proceedings
against the judges.
2.
To notify the parties of this decision.
3.
To continue to examine the merits of the case.
4.
To place itself at the disposal of the parties to facilitate the reaching
a friendly settlement based on respect for the human rights enshrined in
the Convention, and to invite the parties to express their
opinions on this regard; and
5.
To publish this decision and include it in the Annual Report to
the OAS General Assembly.
Hélio
Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Commissioners, , Marta Altolaguirre, Robert K. Goldman, Peter Laurie
and Julio Prado Vallejo.
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