In
the Garrido and Baigorria Case,
the
Inter-American Court of Human Rights, composed of the following judges:
Héctor Fix-Zamudio,
President
Hernán Salgado-Pesantes,
Vice President
Alejandro Montiel-Argüello,
Judge
Máximo Pacheco-Gómez,
Judge
Oliver H. Jackman, Judge
Alirio Abreu-Burelli,
Judge
Antônio A. Cançado
Trindade, Judge
Julio A. Barberis, Judge ad hoc
also
present:
Manuel E. Ventura-Robles, Secretary, and
Ana María Reina, Deputy
Secretary
pursuant
to Articles 45 and 46 of the Rules of Procedure of the Inter-American Court
of Human Rights (hereinafter “the Rules of Procedure”), renders the following
judgment in the instant case submitted by the Inter-American Commission on
Human Rights (hereinafter “the Commission” or “the Inter-American Commission”)
against the Republic of Argentina (hereinafter “the Government” or “Argentina”).
I
1.
This case was submitted to the Inter-American Court of Human Rights
(hereinafter “the Court”) by the Commission by application dated May 29, 1995,
which was accompanied by Report 26/94 of September 20, 1994. It originates in a complaint (No. 11.009) against Argentina which
the Commission received on April 29, 1992.
2.
In its application, the Commission requested the following:
1.
In accordance with the reasoning set forth in the present application,
the Commission requests that the Honorable Court, having received ten copies
of this application with its respective attachments, and based on the requirements
set forth in Article 61 of the Convention and Articles 26 and 28 of the Rules
of Procedure of the Court, admit the present application, transmit it to the
Illustrious Government of Argentina and in due time render a judgment declaring:
i. That the Argentine Government is responsible for
the disappearances of Raúl Baigorria and Adolfo Garrido and that, as a consequence,
violations of Articles 4 (right to life); 5 (right to respect for physical,
mental, and moral integrity); and 7 (right to personal liberty), all in relation
to Article 1(1) of the Convention, are imputed to the Government.
i
i. That the Argentine State has violated the right
of the victims and of their families to a fair trial. In particular, it has violated the right to
a judicial hearing within a reasonable time as recognized by Article 8(1)
of the Convention, as well as the right to simple and prompt judicial recourse
for protection against acts that violate fundamental rights as provided for
in Article 25 of the Convention, both read in relation to Article 1(1) of
the Convention.
iii. That the Argentine State as a consequence of the
violation of the rights protected by Articles 4, 5, 7, 8, and 25, has also
violated Article 1(1) of the Convention, in relation to the obligation to
respect the rights and freedoms recognized in the Convention, and the duty
to ensure and guarantee the free and full exercise of those rights to all
persons subject to the jurisdiction of the Argentine State.
2.
That in accordance with the statements of Point 1 of this petition,
the Court order the Argentine State to make full reparations to the family
of the victims for the grave material and moral injury caused, and, as a consequence,
rule that the Argentine State:
i. Undertake a rapid, impartial, and exhaustive investigation
into the facts complained of for the purpose of determining the whereabouts
of Baigorria and Garrido and establishing the responsibility of the persons
who are directly or indirectly involved, so that they receive the legal sanctions
due them.
ii. Provide information on the circumstances of the
detention of Baigorria and Garrido and the fate of the victims, and locate
and turn over their remains to their families.
iii. Grant reparations for the purpose of compensating
the families of the victims for the material and moral injuries suffered.
iv. Order any other measures which the Court considers
appropriate to remedy the injury caused by the disappearance of Baigorria
and Garrido.
3.
Order the Argentine State to pay the costs of this proceeding, including
the honoraria of the professionals who have served as representatives of the
victims both in their efforts before the Commission and in the proceedings
before the Court.
3.
The Inter-American Commission named Michael Reisman as its Delegate;
David Padilla and Isabel Ricupero as Attorneys; and as Assistants, Juan Méndez,
José Miguel Vivanco, Viviana Krsticevic, Ariel Dulitzky, Martín Abregú, Diego
Lavado, and Carlos Varela Alvarez. Isabel
Ricupero was subsequently replaced by Mario López-Garelli.
4.
On June 12, 1995, after the President of the Court (hereinafter “the
President”) made the preliminary review of the application, the Secretariat
of the Court (hereinafter “the Secretariat”) notified Argentina of the application
and informed the State that it had a period of three months to file a written
answer (Article 29(1) of the Rules of Procedure) and thirty days following
notification of the application to present preliminary objections (Article
31(1) of the Rules of Procedure). The
Secretariat also asked Argentina to appoint its Agent to the Court within
a period of two weeks and, if it considered
it necessary, also to appoint an Alternate Agent.
The
Government received the notification on June 14, 1995.
5.
By note dated June 22, 1995, in Buenos Aires, Argentina appointed Ambassador
Zelmira Regazzoli and Doctor Mónica Pinto as Agent and Alternate Agent respectively;
Doctor Francisco Martínez, Doctor Jorge Cardozo and Secretary Ana María Moglia
as Advisors; and Minister Haydée Osuna as Assistant. By note of January 31, 1996, Ambassador Humberto
Toledo was appointed Alternate Agent.
6.
On July 10, 1995, the Agent of the Government informed the Court that
Argentina would not present preliminary objections.
By another note of the same date the agent notified the Court that
Argentina appointed Julio A. Barberis as Judge ad hoc.
7.
On September 11, 1995, Argentina answered the application. (infra para. 24)
8.
By Order of December 9, 1995, the President summoned the parties to
a public hearing at the seat of the Court to be held on February 1, 1996. The Commission and the Government, in notes
received on January 30 and 31, 1996, respectively, requested postponement
of that hearing.
9.
On February 1, 1996, the public hearing on the merits was held as planned
at the seat of the Court.
There
appeared,
for
the Government of the Republic of Argentina:
Humberto
Toledo, Alternate Agent
for
the Inter-American Commission on Human Rights:
John Donaldson, Delegate
Domingo Acevedo, Attorney
Ariel Dulitzky, Assistant
II
10.
In Section II of its application, the Commission set forth a statement
of the facts that gave rise to this case.
In this regard, the Commission asserts that, according to the account
of eyewitnesses, at approximately 4:00 P.M., on April 28, 1990, Adolfo Argentino
Garrido-Calderón and Raúl Baigorria-Balmaceda were detained by uniformed personnel
of the Police of Mendoza when they were driving around in a vehicle.
This event took place in the General San Martín Park in the City of
Mendoza. According to the witnesses, the men were questioned (or detained)
by at least four police agents wearing uniforms of the mobile division of
the Mendoza Police, who were traveling in two cars belonging to that security
force.
11.
This incident was communicated to the family of Garrido approximately
one hour later, by Ramona Fernández, who heard of the occurrence through the
account of an eyewitness.
12.
The family of Garrido had immediately initiated a search. They were
worried because there was a judicial order of detention out against him. The family asked Attorney Mabel Osorio to locate
Garrido.
The
result of the inquiry was that Mr. Adolfo Garrido was not found to be detained
at any police division. Nevertheless, at the Fifth Police Station of Mendoza the family found
the vehicle in which Garrido and Baigorria had been traveling at the time
of their detention. The police told
them that the vehicle had been found in the General San Martín Park as a result
of an anonymous call claiming that there was an abandoned car there.
13.
On April 30, 1990, Attorney Osorio filed a writ of habeas corpus on
behalf of Garrido, and on May 3 Attorney Oscar A. Mellado also filed a writ
on behalf of Baigorria.
Both
writs were processed by the Fourth Court of Investigation of the Mendoza Province
and were rejected for failure to prove deprivation of liberty.
14.
On May 2, 1990, the family of Garrido filed a formal complaint with
the Public Prosecutor on duty, alleging the forced disappearance of both persons. This proceeding took place in the Fourth Court
of Investigation of the First Judicial District and was identified as No.
60.099.
When
Esteban Garrido, brother of one of the victims, answered the summons to testify,
he met a police officer named Geminiani at the Court.
Mr. Geminiani acknowledged that a photograph of Adolfo Garrido had
been shown by a police agent to the owners of a business that had been held
up, and that the police “were looking for him.”
These statements were recorded in the judicial record.
15.
The application provides the names of the eyewitnesses who saw Garrido
and Baigorria detained and taken away by police personnel.
16.
The families of the disappeared reported the events to the Committee
on Rights and Guarantees of the Chamber of Representatives and to the Senators
of the Mendozan Legislature on May 2 and 11, 1990,
respectively. They did not receive
an answer.
17.
On September 19, 1991, Esteban Garrido presented a new writ of habeas
corpus on behalf of both disappeared before the First Court of Investigation
of Mendoza. It was rejected. He appealed this decision to the Third Criminal
Chamber of Mendoza, which denied the appeal on November 25, 1991.
18.
On November 20, 1991, Esteban Garrido became the civil plaintiff in
Action No. 60.099, which was brought before the Fourth Court of Investigation
of the First Judicial District of Mendoza (supra,
para. 14).
19.
During the five years which have transpired since the disappearance
of Garrido and Baigorria, their families have denounced the events at the
local level as well as at the national and international levels.
They have filed multiple complaints before governmental authorities
and have conducted an intense search in judicial, police, and health facilities,
all to no avail. The judicial file on this proceeding is still in the initial
stage of processing.
III
20.
The Inter-American Commission received the complaint in this case on
April 29, 1992, and began processing it on May 6, 1992.
On September 20, 1994, the Commission adopted Report 26/94, that was
transmitted to Argentina on December 1, 1994, requesting that it provide information
on the measures adopted within a period of sixty days. The resolutions of the Report were as follows:
50.
To declare that responsibility for the disappearances of Raúl Baigorria
and Adolfo Garrido is imputed to the State of Argentina in accordance with
Article 1(1) of the Convention and that, as a consequence, violations of Articles
4 (right to life), 5 (right to respect of physical, mental, and moral integrity)
and 7 (right to personal liberty) of the Convention are attributable to the
State.
51.
To recommend to the Government of Argentina that it undertake an exhaustive,
rapid and impartial investigation into the events denounced for the purpose
of determining the whereabouts of Garrido and Baigorria and establishing the
responsibility of the persons who are directly or indirectly involved, so
that they receive appropriate legal sanctions.
Also to recommend that the State pay compensation to the families of
the victims.
52.
To request that the Government of Argentina inform the Commission,
within a period of sixty days, of the measures adopted as a result of the
present report.
53.
To transmit the present report to the Government of Argentina, which
shall not be authorized to publish it.
21.
On February 6, 1995, the Commission granted Argentina an extension
until February 20, 1995 to submit the information requested.
The
Government, in a note dated February 17, 1995, informed the Commission that
the Ministry of Justice had initiated measures to give effect to the decisions
of the Commission. On March 1, 1995, the Commission granted the Government another period
of an additional ninety days to comply with its obligations.
On
May 25, 1995, the Government requested that the Commission allow it to continue
the actions initiated until the Commission could evaluate the measures adopted
at its next session. The Commission decided that the Argentine answer
did not demonstrate an advance in compliance with the resolution of Report
26/94. On May 29 it submitted its application
to this Court.
IV
22.
The application maintains that the events set forth therein describe
a case of the forced disappearance of Mr. Raúl Baigorria and Mr. Adolfo Garrido
on April 28, 1990, and a resultant denial of justice, which violate numerous
articles of the American Convention on Human Rights (hereinafter “the Convention”
or “the Inter-American Convention”). In
this respect the Commission invokes Articles 1(1) (Obligation to Respect Rights),
4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty),
7(5), 7(6), 8, and 9 (Right to a Fair Trial), 8(1) (Judicial Guarantees),
and 25 (Judicial Protection), (supra
para. 2).
23.
In the application the Commission offers the evidence on which it is
based.
V
24.
The Court considers it pertinent to transcribe the following two paragraphs
from Argentina's answer to the application:
The Government of Argentina accepts the facts set forth in Item II
of the application in relation to the situation of Mr. Raúl Baigorria and
Mr. Adolfo Garrido, facts which substantially coincide with those raised in
the presentation before the Illustrious Inter-American Commission on Human
Rights that were not questioned at that time.
The Government of the Republic of Argentina accepts the legal consequences
to the Government resulting from the facts referred to in the previous paragraph
in light of Article 28(1) and (2) of the American Convention on Human Rights
inasmuch as the competent court has not been able to identify the person or
persons criminally responsible for the crimes against Raúl Baigorria and Adolfo
Garrido and in that way clarify their whereabouts.
25.
During the hearing of February 1, 1996, (supra
para. 9) the Alternate Agent of Argentina, Ambassador Humberto Toledo, stated
that the Government “totally accept[ed] its international responsibility” and
reiterated “the acceptance of international
responsibility of the Argentine State in a case of this kind.” At the same hearing the Commission expressed
its agreement to the terms of the acceptance of responsibility made by the
Alternate Agent of Argentina.
VI
26.
The Court has jurisdiction to hear the instant case. Argentina has
been a State Party to the American Convention since September 5, 1984, and
on that same day accepted the jurisdiction of the Court.
VII
27.
On September 11, 1995, Argentina accepted the facts set forth by the
Commission in Section II of the application.
Those facts are summarized in paragraphs ten through nineteen of the
instant judgment.
Argentina
also accepted the legal consequences that derive from the facts cited (supra
para. 24) Likewise, this State fully
accepted its international responsibility in the present case. (supra para. 25)
Given
the acceptance made by Argentina, the Court determines that there is no controversy
between the parties as to the facts that gave rise to the instant case, nor
as to international responsibility.
VIII
28.
The Court determines that it is now time to decide on the procedures
to be followed on the subject of reparations and compensation in the present
case. In this regard, the Government has requested
of the Court, “the suspension of the proceedings” for a period of six months
for the purpose of reaching an agreement. The nature of proceedings before
a human rights court does not permit the parties to withdraw from the application
of set procedural rules, even by mutual agreement, since they are by nature
of a public procedural order.
29.
Given the current conversations between the Government, the Commission,
and the representatives of the victims, to which the interested parties made
reference during the hearing of February 1, 1996, and in the briefs submitted
to the Court before the hearing, it appears appropriate to grant them a period
of six months to reach an agreement on reparations and compensation.
30.
The Court must point out the difference between the suspension of a
proceeding, which is inadmissible, and the granting of a period to reach an
agreement on reparations and compensation, as this Court has done in some
earlier cases. The latter is within the jurisdiction of the
Tribunal, and, in the present case may be an adequate way to reach an agreement
on reparations and compensation.
IX
31.
Now, therefore,
THE COURT,
DECIDES:
unanimously
1.
To take note of the acceptance made by Argentina of the acts stated
in the application.
2.
To take note as well of Argentina's acceptance of international responsibility
for those acts.
3.
To grant the parties a period of six months from the date of the present
judgment to reach an agreement on reparations and compensation.
4.
To reserve the authority to examine and approve that agreement and,
in the event that the parties do not agree, to continue the proceedings on
reparations and compensation.
Done
in Spanish and English, the Spanish text being authentic. Read at a public
session at the seat of the Court in San Jose, Costa Rica on February 2, 1996.
Héctor Fix-Zamudio
President
Hernán Salgado-Pesantes
Alejandro Montiel-Argüello
Máximo Pacheco-Gómez
Oliver Jackman
Alirio Abreu-Burelli
Antônio A. Cançado Trindade
Julio A. Barberis
Manuel E. Ventura-Robles
Secretary
So ordered,
Héctor Fix-Zamudio
President
Manuel E. Ventura-Robles
Secretary