On October 7, 1998, a petition was filed before the
Inter-American Commission on Human Rights (hereinafter "the
Commission" or "the IACHR") by Carmen Aguiar de Lapacó,
sponsored by the Grandmothers of Plaza de Mayo, the Permanent Human
Rights Assembly (APDH), the Center for Legal and Social Studies (CELS),
the Center for Justice and International Law (CEJIL), Families of
Detainees Missing for Political Reasons, the Argentine League for the
Rights of Man, the Mothers of Plaza de Mayo–Línea
Fundadora Group–, Ecumenical Human Rights Movement (MEDH), and the
Peace and Justice Service (Serpaj) (hereinafter "the
petitioners"), against the Argentine Republic (hereinafter
"the State," "the Argentine State," or
2. The petitioners claim
that Argentine judicial authorities denied Mrs. Carmen Aguiar de Lapacó's
request to determine the fate of her daughter, Alejandra Lapacó, who
was detained and disappeared on March 17, 1977, based on the right to
the truth and the right to mourn. The petitioners consider that the
judicial authorities' rejection of that request violates the right to a
fair trial (Article 8(1)), the right to judicial protection (Article
25), and the obligation to respect the rights (Article 1(1)) enshrined
in the American Convention on Human Rights (hereinafter "the
Convention" or "the American Convention"). The
petitioners further allege violation of the following rights protected
in the American Declaration of the Rights and Duties of Man (hereinafter
"the Declaration" or the "American Declaration"):
the right to equality before the law (Article II) and the right to a
fair trial (Article XVIII). The State claims that the appropriate
domestic remedies were not exhausted and that incidental proceedings “un
incidente judicial” are still pending. It further claims that the
alleged events do not tend to establish a violation of rights
established in the Convention.
3. In examining the
admissibility of the petition, the Commission concluded that it is
competent to hear this case and that the petition is admissible,
pursuant to Articles 46 and 47 of the American Convention.
PROCESSING BY THE COMMISSION
On October 21, 1998, the Commission forwarded the petition to the
State and requested that it supply information thereon within 90 days.
On January 19, 1999, the Argentine State requested an extension
for presenting its observations. A
30-day extension was granted on January 27, 1999.
On February 25, 1999, the State requested another extension.
The Commission granted that request and pushed back the deadline
until March 3, 1999. On
March 16, 1999, the Commission received the State's reply, which was
forwarded to the petitioners that same day.
The petitioners were given 60 days to present their observations
on the State's response.
POSITIONS OF THE PARTIES
5. As background
information to their complaint, the petitioners claim that on March 16,
1977 twelve armed men broke into Mrs. Lapacó's home and took Alejandra
Lapacó, Marcelo Butti Arana, Alejandro Aguiar, and Mrs. Lapacó to a
detention site called “Club Atlético.”
It was there that Mrs. Lapacó last heard and saw her daughter Alejandra.
On March 19, 1977, Mrs. Lapacó and her nephew Alejandro Aguiar Arévalo
were released. Over the years, Mrs. Lapacó has taken many steps to find
her daughter, to no avail.
The petitioners indicate that when democracy was restored in 1983
the executive branch established the National Commission on Disappeared
Persons (hereinafter "Conadep"). Its report entitled NUNCA
MÁS [Never Again] revealed the existence of many secret detention
centers, including the so-called “Club
Atlético” where Alejandra Lapacó was held. They argue that
“although Conadep conducted a huge investigation, it did not
reconstruct the individual stories of each of the missing detainees”
and consequently did not determine what happened to Alejandra Lapacó.
The petitioners further allege that decree 158/83 called for
criminal proceedings against the persons responsible for the State
terrorism. The duly-presented claim regarding the kidnapping, unlawful
imprisonment, and torture of Alejandra Lapacó was one of many that made
up lawsuit Nº 450, which looked into the events that took place at the
“Club Atlético.” When signed statements from the defendants had
been taken and strict temporary detention of the accused had been
ordered, testimony was taken in the case.
On June 4, 1987, law 23.521 known as the “Law on Due
Obedience” was passed, releasing most of the defendants from criminal
liability. The Federal Criminal and Correctional Court of Appeals of the
Federal Capital ordered that statements be taken from those still on
trial. Finally, on October 7, 1989, the executive branch signed decree
1002/89 pardoning those being charged in lawsuit Nº 450.
On May 12, 1995, Mrs. Lapacó requested that the Federal Court of
Appeals send an official communication to the Office of the Army Chief
of Staff in the Ministry of Defense requesting that it submit all
existing information within that force and within the intelligence and
security forces that operated under the First Army Corps between 1976
and 1983 on the ultimate fate of the missing detainees. The petition was
based on the right of family members to know the ultimate fate of their
loved ones, the right of society to gain detailed knowledge of the
methods used by the military dictatorship to exterminate thousands of
Argentines, and finally the right to the truth.
On May 18, 1995, the National Criminal and Correctional Court of
Appeals of the Federal Capital declared the request admissible, stating
"it was incumbent upon it to exercise its jurisdiction."
Although laws 23.492 and 23.521 and decree 1002/89 benefiting members of
the military precluded prosecution, the Court found this did not mean
the proceedings were over. The Secretary General of the Army responded
to the Court's request stating that "the military has no background
information on the specific matter raised in the request.” As a result
of that response, on July 14, 1995 Mrs. Lapacó suggested that official
communications be sent to different organizations that might have
information that could further the investigation. In response to the new
request, on August 16, 1995 the Court stated that this was outside of
its jurisdiction, because of the issuance of due obedience standards,
the Punto Final [“Full Stop”] law, and the pardons. Furthermore, it
decided to bear in mind the report from the Office of the Army Chief of
Staff; it also decided to continue the process as it was upheld and
ordered that a copy of the decision be transmitted to the Subsecretariat
for Human Rights of the Ministry of the Interior, insomuch as the
request could be adequately fulfilled in the executive branch.
10. In light of this decision, on
September 8, 1995 the petitioners filed an extraordinary appeal with the
Supreme Court. On July 8, 1997, the Attorney General, the highest
authority within the “Ministerio
Público”, issued an opinion upholding the importance of
protecting the right to the truth and confirming that continuing with
the investigation in no way violated the principle of non
bis in idem [double jeopardy].
On August 13, 1998, the Supreme Court found the extraordinary
appeal inadmissible, on the grounds that the purpose of investigative
proceedings is to prove that punishable acts were committed and
determine the perpetrators and that, given the current status of the
lawsuit, in which that purpose had been nullified, the appeal could not
be admitted. The judgment stated that "taking the requested steps
would require reopening the case and the consequent exercise of
jurisdictional activity against persons definitively acquitted of the
acts giving rise to this suit. There is no point in accumulating
evidence without anyone to use it against.”
12. The petitioners allege that the
Argentine State, through the Supreme Court decision, has denied their
right to the truth and to a hearing. The petitioners maintain that the
domestic barriers--the two laws and the presidential pardon--cannot be
invoked to block the determination of what happened to Alejandra Lapacó
and the final whereabouts of her body, since the crime of forced
disappearance continues in effect until the victim appears. They
therefore claim that the Supreme Court's decision is unlawful in that it
obstructs the appearance of the victim.
13. With regard to the petition's
admissibility, the petitioners indicated that the Supreme Court decision
exhausted domestic remedies.
The State admits that the decision of the Federal Court of
Appeals of the Federal Capital was based on the fact that “the Court
did not have the authority to gather evidence and obtain information
about events and the circumstances thereof, as requested by the
petitioner, because this complaint does not constitute a ‘case’ to
be decided by the Court given the barriers established in Article 116 of
the Constitution and Article 2 of Law 27.” With regard to the evidence
summoned by Mrs. Lapacó, the State argues that “the evidence would
emerge from simply reconstructing the fate of missing detainees"
and that "if made available would weaken the provisions of the
‘punto final’ and due obedience laws and run the risk of committing
undue double jeopardy, thus affecting the principle of non
bis in idem.”
The State indicated that when Mrs. Lapacó lodged the
extraordinary appeal against the Court's judgment, the Attorney General
of Argentina advised that it be found admissible, because “the justice
system must effectively address the need to mourn, which starts with
knowing the truth.” However, the Supreme Court endorsed the Court of
Appeal's argument and found the extraordinary appeal inadmissible:
“since the purpose of the investigation is to prove that a punishable
act was committed and find the perpetrators, such an investigation is
not admissible in this case because the purpose of the proceedings has
16. On September 10, 1998, the Public
Defender of Argentina filed a motion for clarification with the Supreme
Court. On September 29, 1998 the Court maintained that its decision
“denying the evidentiary measures requested by the appellant is
restricted to the suit in question, because the purpose of the
proceedings was nullified. This certainly neither opened nor closed the
various potential judicial and administrative avenues available to the
complainant to obtain the information she has pursued through an
17. The State rejected the
petitioners' allegations and maintained that the Supreme Court, in both
decisions, did not deny the victims' right to the truth, “since it
merely ruled that the issue should be raised through a judicial or
administrative avenue other than criminal proceedings that have been
concluded,” since if new evidence emerged in a criminal suit that is
over, it would affect the constitutional guarantee of res judicata. To support this position, the State highlighted the
18. Firstly, the State cites the
October 15, 1998 judgment of the Supreme Court in the habeas
data summary proceedings in the “Urteaga, Facundo Raúl vs. The
Argentine State-Joint Chiefs of Staff of the Armed Forces - on Law
16.986” case. In that case, the High Court refers to the Lapacó case
and indicates that that decision “obviously restricted the impact of
the denial to the evidence in that criminal suit, leaving other judicial
and administrative avenues open.”
19. Secondly, the State mentioned the
statements made by Minister Adolfo Vásquez, published in the morning
edition of Clarín on November 3, 1998, in which he maintains
that “there was no change in the position on this issue (...) the
Supreme Court upheld the same principles in the two cases (Lapacó and
Urteaga). The State also cites the opinion of constitutional expert
Miguel Padilla published in El Derecho on October 5, 1998 that
“in virtue of laws 23.492 and 23.521 the alleged perpetrators of the
offenses set forth in the cases cannot be investigated or punished
(…); without a doubt the criminal proceedings are over; it is
therefore legally impossible to order the measures proposed by Mrs.
20. The State also argues that it is
impossible to interpret that the right to the truth was denied, when
only the procedural avenue selected was rejected. The State therefore
claims this does not constitute a violation of the rights enshrined in
Articles 8 and 25 of the American Convention. The State indicates that
the Federal Court adopted certain measures in 1996, such as establishing
incidental search of evidence, identification proceedings and taking
charge of investigations into the fate of victims, so as to reach the
decision to activate what could be construed as jurisdiction to pursue
the right to the truth. The State maintains that this jurisdiction is in
place in the country, and new developments cannot be ruled out.
With regard to the admissibility of the petition, the State
requests that the petitioners' complaint be found inadmissible and
alleges that the judicial avenue used and exhausted by the petitioners
was not the correct one for the claim lodged.
It argues that the desired goal–determining the fate of
Alejandra Lapacó–should have been pursued through a different
avenue–and defers to its observations mentioned above.
The State therefore concludes that domestic remedies were not
exhausted. It further claims that there are still judicial proceedings
pending, through which the measures to determine her whereabouts can
still be requested or ordered and defers to the annexes to its letter,
listing Mrs. Lapacó's incidental proceedings.
ANALYSIS OF ADMISSIBILITY
The purpose of the Commission's decision on the admissibility of
the cases brought before it is not only to produce more clarity and
legal security in its procedures, but also to focus the parties on the
central issues in the case.
Competence ratione materiae,
ratione personae, and ratione
temporis of the Commission
its mandate, the Commission is competent ratione
temporis to examine this case, insomuch as the petitioners maintain
that the Argentine State is responsible internationally for the August
16, 1995 judgment of the Federal Criminal and Correctional Court of
Appeals of the Federal Capital and the August 13, 1998 judgment of the
Supreme Court upholding the decision of the lower court. The judicial
decisions that are the basis of the petitioners' complaint were handed
down after the State had deposited the instrument of ratification with
the General Secretariat of the Organization of American States on
September 5, 1984.
24. The Commission is also competent ratione materiae, since the petition alleges the violation of rights
enshrined in the Convention and the American Declaration. The
petitioners denounce the violation of the right to a fair trial (Article
8(1)), the right to judicial protection (Article 25), and the obligation
to respect the rights protected by the American Convention on Human
Rights (Article 1(1)). The petitioners further allege the violation of
the following rights enshrined in the American Declaration of the Rights
and Duties of Man: equality before the law (Article II) and the right to
a fair trial (Article XVIII).
25. The Commission finds that when
the American Convention entered into force in Argentina on September 5,
1984 it became the primary source of law applicable by the Commission,
provided the petition refers to an alleged violation of rights
substantially the same in both instruments,
and the violation is not on-going.
In this case, the rights allegedly violated by the Argentine
State that are enshrined in the Declaration are also protected under the
Convention, and the situation is not recurrent. Since the rights invoked
by the petitioners in this case are protected in a similar manner in
both instruments, the Commission will refer only to the standards in the
Convention and not those in the Declaration.
26. Thirdly, regarding active and
passive competence ratione
personae, the Commission notes that the petitioners attribute the
violations of Mrs. Lapacó's rights to a State Party, in this case
Argentina, and claim that her capacity as victim stems from the fact
that she is the mother of Alejandra Lapacó, who disappeared in 1977.
Other admissibility requirements for the petition
Exhaustion of domestic remedies
27. Article 46(1)(a) of the
Convention establishes as an admissibility requirement for a petition
"that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
international law." The
rule of prior exhaustion of domestic remedies allows the State to
resolve the problem under its internal law before being confronted with
an international proceeding, such as in the inter-American system for
the promotion and protection of human rights, because the latter
"reinforces or complements" the domestic jurisdiction.
During the Commission's processing of this case, the petitioners
have alleged that the Supreme Court ruling exhausted domestic remedies. The State, however, rejects the petitioners' arguments and
alleges that domestic remedies were not exhausted as provided for in
Article 46(1)(a) of the Convention, insomuch as the correct avenue was
not used for the complaint.
29. Article 46(1)(a) cites generally
recognized principles of international law, which do not refer to the
formal existence of such remedies, but rather that they be adequate and
effective. The Inter-American Court of Human Rights found that “adequate
domestic remedies are those which are suitable to address an
infringement of a legal right. A number of remedies exist in the legal
system of every country, but not all are applicable in every
The Commission finds that whenever the petitioner alleges the exhaustion
of domestic remedies, the State claiming non-exhaustion has an
obligation to prove that domestic remedies remain to be exhausted.
With regard to the remedy the petitioner should have used, the
State argues that the goal–determining the fate of Alejandra Lapacó–should
have been pursued through a different avenue than the one selected,
which furthermore is open. The
State also defers to the arguments made in its observations.
The Commission understands that the State is referring to the
Supreme Court's findings in the Lapacó case, when it mentioned
“different potential judicial and administrative avenues” and in the
Urteaga case, which dealt with habeas
data summary proceedings.
31. However, the Commission finds
that, while the State asserts the above, it does not deny that the
remedy used by Mrs. Lapacó has been exhausted.
In fact, the State indicated that “incidental proceedings are
pending”–and attached a copy of Mrs. Lapacó's incidental
proceedings–through which “the measures aimed at determining the
fate of Alejandra Lapacó could be requested or ordered." The Commission finds that in this case the State had indicated
the possibility of Mrs. Lapacó using either judicial or administrative
avenues. The State even
indicates that new developments are possible.
However, it does not clearly indicate which remedy Mrs. Lapacó
should take and its suitability. Given
the facts examined, the Commission finds that there is no reason to
reject the petitioners' claim to have exhausted domestic remedies, which
is closely related to the merits of this case.
Deadline for lodging the petition
32. Article 46(1)(b) of the American
Convention requires that a petition 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."
In this case, the Supreme Court issued its judgment on August 13,
1998, and neither party reported the date on which Mrs. Lapacó was
notified of that decision. The
petition was lodged with the Commission on October 7, 1998, within the
six-month deadline. The Commission therefore finds that the requirement to lodge
a petition within six months was met.
Duplication of proceedings and res
33. Article 461(c) on admissibility
stipulates that the subject of the petition or communication must not be
pending in another international proceeding for settlement. Article
47(d) of the Convention establishes that a petition is inadmissible if
it is substantially the same as one previously studied by the Commission
or by another international organization.
In this case, the parties have neither alleged nor proven that
the matter submitted to the Commission for its consideration is pending
settlement or has been decided on by another international organization.
Furthermore, it is not the same as a petition already examined by
the Commission. The Commission therefore concludes that these
requirements have been met.
Characterization of the allegations
34. Article 47(b) of the Convention
stipulates 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
petitioners have alleged that as a result of the decisions of the
Argentine judicial authorities in the Lapacó case, the State violated
the right to due process (Article 8), the right to judicial protection
(25), and the duty to respect the provisions of Article 1(1) of the
Convention. The Commission finds that the events alleged by the
petitioner, if true, could constitute a violation of rights enshrined in
the American Convention and therefore finds this petition admissible.
35. 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.
36. Based on the foregoing de
facto and de jure arguments,
and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION OF HUMAN RIGHTS,
1. Declare this case
2. Notify the parties of
3. Continue to examine
the merits of the case.
Place itself at the disposal of the parties, with a view to
reaching a friendly settlement of the matter on the basis of respect for
the human rights recognized in the American Convention. The Commission
invites both parties to reply on the possibility of initiating such a
5. Publish this decision
and include it in the Commission's Annual Report to the General Assembly
of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights in Washington, D.C. on May 4, 1999. (Signed): Robert K. Goldman,
Chairman; Hélio Bicudo, First Vice-Chairman; Claudio Grossman, Second
Vice-Chairman; and Members Carlos Ayala Corao, Alvaro Tirado Mejía, and
Jean Joseph Exumé.
See, among others, Inter-American Commission on Human Rights, Annual
Report 1998, Report Nº 49/97, Case 11.520, Tomás Porfirio Rondín
and others, “Aguas Blancas" (Mexico), OEA/Ser/L/V/II.98,
February 18, 1998, para. 50, page 8.
The Inter-American Court of Human Rights found that “for the
States Parties to the Convention, the specific source of their
obligations with respect to the protection of human rights is, in
principle, the Convention itself.” Advisory Opinion OC-10/89
(Interpretation of the American Declaration of the Rights and Duties
of Man within the Framework of Article 64 of the American Convention
on Human Rights) of July 14, 1989, para. 46.
The Inter-American Court stated that “these States cannot escape
the obligations they have as members of the OAS under the
Declaration, notwithstanding the fact that the Convention is the
governing instrument for the States Parties thereto."
Advisory Opinion OC-10/89 of July 14, 1989, para. 46.
The Commission has established that it is competent to examine
violations of the Declaration and the Convention when there is
confirmed, on-going violation of rights protected in these
instruments, such as for example when justice is denied in acts
originating before the State in question ratified the Convention
that continue after the State has expressed its adherence to the
Treaty and that Treaty has entered into force. See, for example,
Res. 26/88, Case 10.190, Argentina, Annual Report of the IACHR
Inter-American Court of Human Rights has found that victims' family
members also have the right to a hearing. Blake case, judgment of
January 24, 1988, para. 96 and 97.
Inter-American Court of Human Rights,
judgment in the Velásquez Rodríguez Case, July 29, 1988, Series C
Nº 4, para. 61.
Velásquez Rodríguez Case, para.
In this regard, the Inter-American Court of Human Rights found that
"the State claiming non-exhaustion has an obligation to prove
that domestic remedies remain to be exhausted and that they are
Velásquez Rodríguez Case, Preliminary Objections, Judgment
of June 26,
1987, para. 88.