REPORT No. 3/02*
ADMISSIBILITY
PETITION 11.498
JORGE FERNANDO GRANDE
ARGENTINA
February 27, 2002

 

I. SUMMARY

1. The present report addresses the admissibility of petition 11.498. The matter was opened by the Inter-American Commission on Human Rights (hereinafter “Inter-American Commission, “Commission” or “IACHR”) pursuant to the filing by Jorge Fernando Grande of a petition dated October 31, 1994, and received on November 2, 1994, against the Republic of Argentina (hereinafter “Argentina” or “State”). Mr. Grande was initially represented by attorney Martin Federico Böhmer, and as from a communication received on July 5, 1995, by attorney Eduardo Oteiza. As from a communication received on November 16, 1998, Mr. Grande has been represented by attorney Pedro Patiño Mayer. (Hereinafter the foregoing will be referred to as “the petitioners.”)

2. The petition alleges that Mr. Grande was detained on July 29, 1980, held for two weeks under brutal conditions, and subjected to a prolonged prosecution on the basis of evidence obtained illegally, namely documents seized by the police in the absence of a written judicial order. They report that he was prosecuted for crimes of “economic subversion” in a process that lasted from August 29, 1980 until the definitive dismissal of the charges against him on January 24, 1989. They indicate that the charges were dismissed precisely because the evidence that served as the basis for the prosecution was found by the Federal Chamber of Appeals to have been obtained in violation of the Argentine Constitution. Mr. Grande thereafter filed an action for damages against the State. While the court of first instance determined that he was indeed entitled to compensation, the court of second instance revoked that finding in favor of the position of the State. Mr. Grande’s attempts to seek further review were rejected. The petition contends that, as a consequence of the foregoing, Mr. Grande was subjected to violations of his rights to due process, and to compensation for a miscarriage of justice under Articles 8 and 10 of the American Convention on Human Rights (hereinafter “American Convention”).

3. The State, for its part, largely limited its substantive intervention in this matter to a brief recounting of the procedural history, indicating among other points that domestic remedies were exhausted in 1994. Its submissions have focussed primarily on its efforts to seek a possible friendly settlement of the matter. While both parties were actively engaged in the process to seek a friendly settlement, their respective submissions reflect that these efforts failed to produce concrete results. Finally, in a submission of December 10, 2001, the State presented arguments challenging the admissibility of the petition, on the one hand, on the basis that the Commission lacks jurisdiction ratione temporis, and on the other, on the basis that the petitioners failed to present facts tending to demonstrate the violation of a protected right.

4. As set forth below, pursuant to its examination, the Commission concludes that it is competent to take cognizance of the petitioners’ complaints concerning alleged violations relating to Articles 8, 25 and 1(1) of the American Convention, and that the petition is admissible in this regard pursuant to the terms of Articles 46 and 47 of that Convention. To the extent necessary, the Commission will also examine the corresponding articles of the American Declaration in its decision on the merits. The claims raised concerning Article 10 of the American Convention are inadmissible.

II. PROCESSING BEFORE THE COMMISSION

5. The Commission acknowledged receipt of the petition on November 10, 1994. By note of June 15, 1995, the Commission initiated the processing of the matter by transmitting the pertinent parts of the denunciation to the State, with a response requested within 90 days. By a note of September 19, 1995, the State requested an extension of time in which to respond. The Commission granted an additional 45 days by note of September 21, 1995. By note of November 6, 1995, the State requested a further extension. By note of November 7, 1995, the Commission granted the State a final 45 days.

6. In a communication dated November 7, 1995, and received the following day, the petitioners informed the Commission that they had met with a number of State officials, and requested a 30 day suspension of the proceedings in order to pursue a possible friendly settlement under the terms of Article 48(f) of the American Convention. On November 10, 1995, the Commission acknowledged receipt of that communication, and transmitted the pertinent parts to the State. The Commission indicated to both parties that it was pleased by this initiative toward a possible friendly settlement and wished to be informed of the advances and results achieved.

7. The State filed its response to the petition via a note dated December 14, 1995, expressly indicating its disposition to seek a friendly settlement of the matter at issue. This was transmitted to the petitioners on December 18, 1995, with the presentation of observations or additional information requested within 30 days.

8. On October 28, 1996, the petitioners presented a communication seeking that the State define its position on a proposal of friendly settlement. On November 4, 1996, the Commission requested that the State provide information on the development of the friendly settlement process, and attached a copy of the foregoing communication presented by the petitioners.

9. On November 12, 1996, the State reported on a meeting held on November 11, 1996 with the petitioners, in which Mr. Grande’s attorney reportedly agreed to proffer a proposal for a friendly settlement agreement within 30 days. On January 21, 1997, the State reported that this proposal had been presented and was under study. By notes of March 7 and 27, June 5, and August 1, 1997, the petitioners requested that the State promptly define its position on a possible settlement. On August 7, 1997, the Commission addressed the State to request information on the status of the friendly settlement process and to transmit a copy of the petitioners’ August 1, 1997 communication.

10. By notes dated November 6, 1997, and March 4 and 12, and June 1 and 23, 1998, the petitioners informed the Commission that, because of divergent views within the Government itself, the friendly settlement process was not progressing. On July 6, 1998, the Commission indicated that this matter was among those to be discussed during meetings with the State during the month of August 1998. The petition was discussed with both parties during a visit to Argentina in August of 1998 by the Commission’s Rapporteur and Executive Secretary.

11. On August 20, 1998, the petitioners expressed their desire to continue with the friendly settlement process, notwithstanding the lengthy delays and other obstacles encountered. On August 21, 1998, the State reported that it was engaged in efforts to implement the internal measures necessary to concretize a friendly settlement, and that this process had led to some delay due to the lack of internal norms in this area. This communication was transmitted to the petitioner by note of August 25, 1998, with any observations requested within 30 days. The petitioners responded with a brief communication of September 9, 1998. The petitioners’ communications of August 20 and September 9 were transmitted to the state on September 25, 1998, with the receipt of all information relative to the matter requested within 60 days.

12. On November 16, 1998, Mr. Grande informed the Commission of a change in his legal representation. On November 30, 1998, the State requested an extension of time to present its observations. By notes of December 8, 1998, the Commission granted an additional two months, and informed the petitioners accordingly. On February 8, 1999, the State requested a further extension. By notes of February 18, 1999, the Commission granted another 30 days and so informed the petitioners. The State provided observations by means of a communication received on March 23, 1999, indicating that it was continuing to try to resolve the lack of internal regulation relative to the procedure of friendly settlement, and that there were in any case divergent views within the Government as to the viability of such a settlement. This was transmitted to the petitioner on April 22, 1999, with observations in response requested within 60 days.

13. By note received June 16, 2000, the petitioners presented additional information and requested that the Commission proceed to adopt a report on this matter under Article 50 of the Convention. This was transmitted to the State on July 11, 2000, with any observations in response requested within 30 days. On July 19, 2000, the petitioners reiterated their request that the Commission adopt a report. That information was transmitted to the State on August 24, 2000, with observations requested within 30 days. On August 14, 2000, the State requested an extension, and by note of August 15, 2000, was granted an additional 30 days. The petitioners submitted brief notes on September 5 and 9, 2000, which were incorporated in the case file. On October 26, 2000, the Commission addressed the State to reiterate its August 24, 2000 request for observations.

14. On December 4, 2000, the State submitted information to the effect that, given the acceptance by previous administrations of the possibility of seeking a friendly settlement, and the existence of divergent views on the feasibility of such a settlement within the current administration, the relevant areas were studying the issue with a view to adopting a unified position. This communication was transmitted to the petitioners on December 19, 2000, with any observations requested within 30 days. On September 25, 2001, the Commission received a brief communication from the petitioners reiterating their position and requesting that a report be adopted. This was transmitted to the State for its information by note of October 24, 2001. By note of December 10, 2001, the State reported that, because its competent authorities had determined that the petition presented no violation, it would no longer be possible for it to pursue a friendly settlement.

15. Finally, with respect to this issue of friendly settlement, the Commission wishes to note that the procedure contemplated under Article 48(f) of the Convention provides an excellent opportunity for the non-contentious resolution of complaints, and has served to the benefit of both parties in many cases. However, if the parties in a given matter indicate that the process is not progressing or cannot produce a settlement in conformity with the terms of Article 48(f), as is the situation with respect to the present petition, the Commission will deem the friendly settlement process concluded.

III. POSITION OF THE PARTIES

A. The Petitioners

16. For the purposes of this report, which examines the admissibility of the claims raised, the petitioner’s allegations may be summarized as follows. On July 28, 1980, the Argentine Federal Police initiated an investigation with respect to the Cooperativa de Crédito “Caja Murillo,” where Mr. Grande worked as the Chief of Credits, concerning alleged criminal activity by the management. He indicates that he cooperated by supplying information that first day, and only learned later that the police had not been acting pursuant to judicial order. The next day, he was requested to appear at the Banks Division of the Federal Police in the Argentine National Bank. He indicates that he went, unaccompanied by counsel, with the objective of collaborating in the investigation. He was detained that same day, and held until August 12, 1980 when he was released on his own recognizance.

17. While he does not invoke these facts as violations before the Commission, he nonetheless notes that during those two weeks he was brutally tortured. He reports having been held incommunicado for five days in the Central Department of the Federal Police in Buenos Aires, and questioned in the National Bank. He alleges that he was threatened with death to pressure him to reveal the whereabouts of funds that he knew nothing about. He states that he was beaten, hooded and tortured with the application of electricity. He indicates that when he was finally taken before a magistrate, he wanted to denounce what had happened, but a court official warned him that, given the political circumstances, this would place his life at risk and that it was better to say nothing.

18. Mr. Grande reportedly remained under criminal prosecution from August 29, 1980 until the charges against him were definitively dismissed on January 24, 1989. He indicates that the definitive dismissal of the charges was based on the nullification of the searches of the bank and seizure of documents by the Federal Chamber of Appeals, which determined that those actions had been carried out absent written judicial authorization and in violation of the Constitution.

19. Mr. Grande indicates that he then filed an action for damages against the State arising from his allegedly unjust detention and prosecution. On April 14, 1992, the judge at first instance of the Federal Administrative Contentious Court ordered that the State pay Mr. Grande damages in the amount of $150,000 plus interest and costs. He reports that this decision was based on the finding that the irregular actions of the Federal Police had led to deficiencies in the administration of justice. He notes that the resulting damages to his psychological state were proven in this process through various means including the opinion of the court’s own medical expert.

20. Both the State and Mr. Grande appealed that decision. On April 6, 1993, the National Chamber of Appeals in Federal Administrative and Contentious Matters revoked the sentence issued at first instance. The appellate chamber opined that, first, State responsibility could only be established in the case of an “evident, manifest and unquestionable” judicial error, and that this had not been demonstrated in Mr. Grande’s case. Mr. Grande maintains that the error on which his prosecution was based in fact met that standard, and that the process against him was characterized by its very irregularity. Second, the appellate chamber decided that Mr. Grande had not utilized all the available legal remedies to obtain an immediate remedy for the wrongs he claimed. He indicates that any limitations he may have experienced in his capacity to pursue other legal remedies were due precisely to the psychological damage sustained as a result of his treatment. Further, he notes that the Chamber of Appeals arrived at its determination that there had been no manifest error in the process against him by pointing out that the definitive dismissal was based not on Mr. Grande’s innocence but on the impossibility of producing new evidence against him.

21. He reports having filed a recurso extraordinario before the National Chamber of Appeals seeking review of its decision. Following the denial of that recourse, he presented a recurso de queja before the Supreme Court of Justice. The latter was rejected as inadmissible on April 12, 1994, and he reports having received notification on May 3, 1994. He maintains that it was at this point that he exhausted domestic remedies.

22. The petitioners contend that Mr. Grande was subjected to an illegal and arbitrary detention and prosecution at the hands of the military dictatorship, which charged him with “economic subversion.” They maintain that the facts alleged constitute violations of Article 8 of the American Convention, particularly concerning the due process guarantees required during criminal proceedings, and Article 10, concerning the right to receive compensation in the event of being sentenced by a final judgment through a miscarriage of justice.

23. The petitioners actively pursued a process aimed at arriving at a possible friendly settlement of this matter. Given the obstacles reported by the State, however, since at least June of 2000, the petitioners have expressly requested that the Commission move forward with the procedures set forth in the Convention and Rules of Procedure to determine the admissibility of the petition and adopt a report on the merits.

B. The State

24. In its initial response, the State recounted the procedural history of the matter of “Grande, Jorge F c/ Estado Nacional (Ministerio de Educación y Justicia) s/ Cobro” before the Argentine judiciary, indicating that domestic remedies had been exhausted with the April 12, 1994 decision of the Supreme Court of Justice rejecting the recurso de queja filed by Mr. Grande. The State noted that, while the court of first instance had awarded an indemnity of $150,000 on the basis that the police had acted illegally in searching for and seizing documents absent any written judicial order, the majority of the Second Chamber of the National Chamber of Appeals for Federal Administrative Contentious Matters had disagreed with that evaluation. The decision at first instance was revoked, the State indicated, because the appellate court found that the judiciary bore no responsibility for the challenged actions of the police.

25. The State indicated in that initial response that, in conformity with its practice of cooperation with the Commission, it was disposed to initiate proceedings to seek a friendly settlement of the matter denounced in accordance with the terms of Article 48 of the American Convention. The State indicated that it wished to reserve its response on the questions of law raised in the petition.

26. With respect to the extensive proceedings carried out in search of a possible friendly settlement, the State repeatedly referred to two barriers. First, it noted the absence of internal norms available to effectuate such a settlement. Second, it reported that the various offices charged with review of the matter were in disagreement as the legality and feasibility of arriving at such an agreement. While the Commission received documentation reflecting certain of these divergent positions, until the State’s submission of December 10, 2001, the latter had taken no further official position either on the issue of friendly settlement or with respect to the admissibility and merits of the petitioners’ claims.

27. In its December 10, 2001 presentation, the State rejected the possibility of further negotiations aimed at the friendly settlement of the matter on the basis that its authorities had concluded that the petition presented no violation. The State indicated, first, that the petition is inadmissible because the violations alleged predate its ratification of the American Convention. It noted that the search complained of took place on July 28, 1980, while the American Convention entered into force for Argentina on September 5, 1984. The State maintained that the allegations upon which the petition is based, with respect to the search, detention and supposed torture, fall outside the temporal scope of the Commission’s competence.

28. Further, the State argued that the petitioners have failed to allege facts tending to characterize the violation of a protected right because Mr. Grande consented to the initial search. Although the Federal Chamber of Appeals considered that the lack of a written order nonetheless nullified the search and any evidence thereby obtained, the State indicated that the doctrine of the Supreme Court affirms that consent may legitimate a search carried out without a warrant. The State argued that Mr. Grande can hardly complain about a search initiated pursuant to his denunciation, and with which he initially cooperated.

29. The State emphasized that Mr. Grande neither challenged the criminal proceedings brought against him, nor the legality of the search itself. Rather, it was another defendant in the same matter who challenged the legality of the search. The State argued that Mr. Grande remained “passive” in the face of the prosecution against him and thereby effectively “acquiesced” with respect to his procedural situation. The State indicated that Mr. Grande was only detained for 14 days, and that he never filed a judicial complaint or produced any proof that he was subjected to abuse during that period. The State maintained that it was precisely in observance of the principle of the presumption of innocence that the charges against him were definitively dismissed due to the improbability of finding additional proof against him.

30. With respect to Mr. Grande’s unsuccessful attempt to seek compensation through the courts, the State contended that his petition before the Commission simply manifests his disagreement with the decision of a competent court taken within the scope of its jurisdiction. Accordingly, the State maintained that the petition seeks to have the Commission substitute its judgment for that of the Argentine courts on matters of internal law, and as such, falls outside the Commission’s competence.

31. The State affirmed that Mr. Grande enjoyed full access to judicial remedies, and has set forth no facts tending to demonstrate a violation of his right to due process. The State further indicated that the alleged violation of the right to compensation under Article 10 of the American Convention is inadmissible. The State noted that this Article refers to the right to compensation for a final sentence issued due to judicial error, while there was no such final sentence issued against Mr. Grande, but only the definitive dismissal of all charges against him.

IV. ANALYSIS OF ADMISSIBILITY

A. Competence of the Commission ratione personae, ratione materiae, ratione temporis and ratione loci

32. The Commission is competent to examine the petition in question. In accordance with the terms of Article 44 of the American Convention, the petitioners have standing to present a claim before the Commission. The petition under study indicates that the alleged victim was subject to the jurisdiction of the Argentine State at the time of the alleged facts. Argentina has been a member State of the Organization of American States since its ratification of the OAS Charter in 1948, and as such subject to the jurisdiction of the Commission in respect of individual complaints since that competence was established by statute in 1965 with reference to the terms of the American Declaration of the Rights and Duties of Man (hereinafter “American Declaration”). Argentina has been subject to the Commission’s jurisdiction under the terms of the American Convention since it deposited its instrument of ratification on September 5, 1984. Accordingly, the Commission has the competence ratione personae to examine the claims presented.

33. Insofar as the petition raises complaints concerning rights set forth in the American Convention, namely Articles 8 and 10, the Commission has the competence ratione materiae to review it.

34. The State argues that the present petition is inadmissible ratione temporis because the initial facts upon which it is predicated predate the entry into force of the American Convention for Argentina. With respect to those initial facts, as noted above, the American Declaration of the Rights and Duties of Man sets forth the standards applicable to the Commission’s review. For any member State that has yet to ratify the American Convention, the fundamental rights it undertakes to uphold as a Party to the OAS Charter are those set forth in the American Declaration, which constitutes a source of international obligation.[1] The Commission’s Statute and Rules of Procedure provide additional norms concerning the exercise of its jurisdiction in this regard. That jurisdiction was in effect at the time of the first facts alleged by the petitioners, and the Declaration, like the Convention, protects the right to due process (Articles XVII and XVIII) invoked in the case. Once Argentina’s ratification became effective, the American Convention became the principal source of legal obligation,[2] and the rights and obligations expressly cited by the petitioners became applicable. Accordingly, the Commission is competent ratione temporis to address the claims presented by the petitioners.

35. Finally, given that the petition alleges violations of rights protected under the American Declaration and Convention that have taken place in the territory of an OAS member state, the Commission concludes that it has the competence ratione loci to take cognizance of it.

B. Other requirements for the admissibility of the petition

a. Exhaustion of domestic remedies

36. Article 46 of the American Convention specifies that, in order for a case to be admitted, "remedies under domestic law [must] have been pursued and exhausted in accordance with generally recognized principles of international law." This requirement exists to ensure the state concerned the opportunity to resolve disputes within its own legal framework. When domestic remedies are unavailable as a matter of fact or law, however, the requirement that they be exhausted is excused.[3] Article 46(2) of the Convention specifies that this exception applies: if the legislation of the state concerned fails to afford due process for the protection of the right allegedly violated; if the party alleging violation has been hindered in his or her access to domestic remedies; or if there has been unwarranted delay in the issuance of a final judgment.

37. In the present case, the parties are in agreement that the relevant domestic remedies with respect to Mr. Grande’s attempt to obtain compensation were exhausted with the April 12, 1994 decision of the Supreme Court of Justice to reject Mr. Grande’s recurso de queja. The petitioners indicate that Mr. Grande received notification of this decision on May 3, 1994, and the State has not contested this affirmation. The Commission concludes that May 3, 1994 is thus the relevant date for the purposes of its admissibility analysis.

38. In terms of the requirement of exhaustion and the scope of the petition, the Commission notes that the claims placed before it concern: Mr. Grande’s detention; the connected criminal prosecution initiated against him in 1980, a process which remained pending until the charges were definitively dismissed in 1989; and the civil proceedings he initiated to seek reparation. The petition refers to allegations of torture as a point of reference, but neither attempts to include these within the violations affirmed nor makes reference to those claims having been placed at any time before the national judiciary as required under Article 46. Further, according to the Commission’s review, these allegations were not raised within the domestic judicial proceedings at issue in the present matter. Accordingly these allegations are not included within the scope of the Commission’s review.

b. Time period for submission of the petition

39. In accordance with Article 46(1)(b) of the Convention, a petition must be presented in a timely manner to be admitted, namely, within six months from the date on which the complaining party was notified of the final judgment at the domestic level. The six months rule ensures legal certainty and stability once a decision has been taken.

40. According to the record before the Commission, in the present case notification of the final judgment was received by Mr. Grande on May 3, 1994, and the petition was filed with a date of October 31, 1994 and received at the Secretariat on November 2, 1994. The Commission thus concludes that the petition meets the requirement of timely filing.

c. Duplication of proceedings and res judicata

41. Article 46(1)(c) sets forth that the admission of a petition is subject to the requirement that the subject “is not pending in another international proceeding for settlement,” and Article 47(d) of the Convention stipulates that the Commission shall not admit a petition which “is substantially the same as one previously studied by” it “or by another international organization.” In the present case, the parties have not claimed and the proceedings do not indicate the existence of either of these circumstances of inadmissibility.

d. Characterization of the facts alleged

42. Article 47(b) of the American Convention provides that allegations which do not state facts tending to establish a violation shall not be admitted. In this regard, the Commission finds that the facts alleged could raise issues with respect to the protections set forth in Article 8 of the Convention concerning the legality of evidence and the means through which it is obtained. Further, and taking into account the principle of jura novit curia, in its decision on the merits the Commission will specifically address the requirement under Article 8, as well as Article 25, that any person accused of a crime be tried and heard within a reasonable time. The facts alleged also raise issues with respect to the obligations set forth in Article 1(1) of the Convention. Insofar as the facts alleged to have predated Argentina’s ratification of the Convention are concerned, if shown to be true, these could tend to establish violations of the right to due process under Articles XXV and XXVI of the American Declaration.

43. With respect to the allegations raised by the petitioners concerning Article 10 of the Convention, the Commission finds that they fail to state facts tending to show a violation. Article 10 refers to the right of any person “to be compensated in accordance with the law in the event that he has been sentenced by a final judgment through a miscarriage of justice.” In the present matter, Mr. Grande was not sentenced through a final judgment; rather, all charges against him were definitively dismissed. The decision in question was not taken as to the merits of his innocence or guilt, but as to whether to continue the prosecution or dismiss it. Even assuming the corresponding claims are true, they could not constitute a violation of this provision.

44. The Commission finds in the present case that the petitioner has stated claims concerning alleged violations of the right to judicial protection and guarantees, which, if consistent with other requirements and shown to be true, could tend to establish the violation of rights protected under Articles 8, 25 and 1(1) of the American Convention. To the extent that it may be necessary, the Commission shall also review Articles XXV and XXVI of the American Declaration in its examination of the merits.

V. CONCLUSIONS

45. The Commission concludes that it is competent to take cognizance of the instant case and that the petition is admissible, pursuant to Articles 46 and 47 of the American Convention.

46. Based on the factual and legal arguments set forth above, and without prejudging the merits of the case,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

DECIDES:

1. To declare the present case admissible with respect to the alleged violation of the rights recognized in Articles 8, 25 and 1(1) of the American Convention, and to the extent relevant, Articles XXV and XXVI of the American Declaration. The claims concerning Article 10 of the American Convention are deemed inadmissible.

2. To notify the parties of this decision.

3. To continue with the analysis of the merits of the case.

4. To make this report public, and publish it in its Annual Report to the General Assembly of the OAS.

Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., the 27th day of February 2002. (Signed): Marta Altolaguirre; First Vice-President, Robert K. Goldman, Julio Prado Vallejo, and Clare K. Roberts, Commission members.

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* Pursuant to the terms of Article 19(2) of the Regulations of the Commission, its President, Juan E. Méndez, a national of Argentina, did not participate in the discussion or decision on the present case.

[1]IACtHR, Advisory Opinion OC-10/89, July 14, 1989, "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," Ser. A Nº 10, paras. 43 - 46.

[2] Id., para. 46.

[3] See IACtHR, Exceptions to the Exhaustion of Domestic Remedies (Art. 46.1, 46.2.a and 46.2.b American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Ser. A No. 11, para. 17.