Cantos Case, Judgment of September 7, 2001, Inter-Am Ct. H.R. (Ser. C) No. 85 (2001).
In the Cantos case,
the
Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American
Court”), composed as follows[1]:
Antônio A. Cançado Trindade, President
Hernán Salgado Pesantes, Judge
Oliver
Jackman, Judge
Alirio
Abreu Burelli, Judge
Sergio
García Ramírez, Judge
Carlos Vicente de Roux Rengifo,
Judge, and
Julio
A. Barberis, Judge ad hoc,
also
present,
Manuel E. Ventura Robles, Secretary, and
Pablo
Saavedra Alessandri, Deputy Secretary
in accordance with Article 36 of its Rules of Procedure[2]
(hereinafter “the Rules of Procedure”), delivers judgment on the preliminary
objections filed by the Argentine Republic (hereinafter “the State” or “Argentina”).
I
introduction
of the case
1. This case was submitted to the Court
by the Inter-American Commission on Human Rights (hereinafter “the Commission”
or “the Inter-American Commission”) on March 10, 1999. The Commission’s application arises from petition
No. 11,636 received by its Secretariat on May 29, 1996.
II
facts set forth in the application
2. In
its application, the Inter-American Commission set out the facts on which
the complaint is based. According
to the Commission, at the beginning of the 1970s, José María Cantos was the
owner of an important business group in the province of Santiago del Estero
in Argentina. This group comprised
the companies Citrícola del Norte, Canroz S.A., José María Cantos S.R.L.,
Rumbo S.A., José María Cantos S.A., Miguel Ángel Cantos S.A. and Marta Inés
S.A. Mr. Canto was also the principal shareholder
of Radiodifusora Santiago del Estero S.A.C. and of the Nuevo Banco de Santiago
del Estero and owned rural and urban properties in that province. The above-mentioned companies employed over
700 persons.
In
March 1972, the Revenue Department of the Province, headed at that time by
Luis María J. J. Peña, conducted a series of searches in the administrative
offices of Mr. Canto’s companies, owing to an alleged violation of the Stamp
Act[3]. During these procedures, all the accounting
documentation, company books and records, receipts and supporting documents
of payments by those companies to third parties and suppliers, as well as
numerous shares and securities were seized, without being inventoried.
From
then on there were financial losses, because the said companies could not
operate, owing to the lack of the company documents and also due to the impossibility
of setting up a defense against liens filed by third parties to exact payment
of bills that had already been settled.
Since
March 1972, Mr. Cantos has filed various lawsuits to defend his interests. In this respect, at that time, he filed a criminal
complaint against the Director General of Revenue of the Province.
Two months later he filed an application for amparo, which was unsuccessful. On September 10, 1973, he filed an administrative claim preparatory
to the judicial complaint before the Federal Auditor of the Province, to have
the losses caused by the searches and the retention of the business documentation
by officials of the Revenue Department of the Province acknowledged.
The amount of the losses was estimated at 40,029,070.00 pesos (forty
million twenty-nine thousand and seventy pesos) under Act 18,188[4]. This claim was expanded on May 23, 1974, when
the losses were estimated at 90,214,669.10 pesos (ninety million two hundred
and fourteen thousand six hundred and sixty-nine pesos and ten cents) under
Act 18,188. In view of the lack of response, on June 6, 1974, and April 26,
1976, Mr. Cantos requested “fast-track” settlement of the administrative claim.
Apart
from the lawsuits he filed, José María Cantos reached an agreement with the
Government of the Province of Santiago del Estero on July 15, 1982, by which
the latter acknowledged a debt towards a group of his companies, and established
a compensatory amount and a date to comply with this obligation.
As
a result of the lawsuits he had filed, Mr. Canto was subjected to “systematic
persecution and harassment by State agents.”
For example, Mr. Cantos was detained incommunicado more than 30 times
by police agents. His sons, who were
minors at the time, were detained on several occasions and police agents were
even posted outside his house on a permanent basis to impede anyone from entering
or leaving. According to the records
of the Police Force of the Province of Santiago del Estero, from 1972 to 1985,
17 different cases were filed against José María Cantos for the crimes of
fraud, embezzlement and forgery. All
the cases were dismissed.
Since
the Province of Santiago del Estero did not comply with its agreement with
Mr. Cantos on July 15, 1982, once the time limit had expired, Mr. Cantos filed
a petition against the province and against the State of Argentina before
the Supreme Court of Justice, on July 4, 1986.
The amount claimed was 130,245,739.30 pesos (one hundred and thirty
million two hundred and forty-five thousand seven hundred and thirty-nine
pesos and thirty cents) under Act 18,188.
The amount was calculated by updating the amount claimed from May 23,
1974, to December 31, 1984, according to the value of the United States dollar,
with a daily interest rate of one per cent.
On
September 3, 1996, the Supreme Court of Justice delivered judgment rejecting
the petition and requiring Mr. Cantos to pay the costs of the proceeding. These costs amounted to approximately US$ 140,000,000.00
(one hundred and forty million United States dollars).
III
proceeding before the commission
3. On
May 29, 1996 the Commission received a complaint for alleged violation of
the rights of José María Cantos embodied in Articles 5 (Right to Humane Treatment),
11 (Right to Privacy), 17 (Rights of the Family), 21 (Right to Property),
8 (Right to a Fair Trial) and 25 (Judicial Protection) of the American Convention
on Human Rights (hereinafter “the Convention” or “the American Convention”).
Violation of the obligation contained in Article 1(1) (Obligation to
Respect Rights) of the Convention was also cited, as well as non-compliance
with several articles of the American Declaration of the Rights and Duties
of Man (hereinafter “the Declaration”). The
complaint was submitted by the alleged victim, José María Cantos, his legal
advisers, Germán J. Bidart Campos, Susana Albanese and Emilio Weinschelbaum,
and by the Center for Justice and International Law (hereinafter “CEJIL”). On June 13, 1996, the Commission sent the State
the pertinent parts of the complaint and requested its answer thereto.
4. Between July and October 1996, the original
petitioner expanded the complaint and the corresponding information was forwarded
to the State.
5. Argentina
requested several extensions which the Commission authorized. Finally, the State replied on December 23,
1996, requesting that the complaint be declared inadmissible. The following day, the Argentine request was
communicated to the petitioners, who forwarded their answer on January 16,
1997. This answer was then transmitted
to Argentina on January 22, 1997.
6. On March 4, 1997, a hearing was held during
which the parties presented the facts and the applicable law. The following March 6, Mr. Cantos submitted
additional information from which it emerged that he had been subject to new
and disproportionate regulations regarding fees in the domestic sphere; he
therefore requested the adoption of precautionary measures. Consequently, on March 11, 1997, the Commission
requested the State to adopt measures aimed at suspending the attachment of
the property of Mr. Cantos.
7. On
March 13, 1997, the Commission made itself available to the parties in order
to reach a friendly settlement and, to this end, convened a hearing on October
6, 1997. Three days after this, the
State of Argentina advised that it could not agree to the proposal of a friendly
settlement made at the said hearing.
8. On November 3, 1997, the petitioners informed
the Commission that, in their opinion, it would not be possible to reach a
friendly settlement at that time and that it should continue processing the
case. This information was forwarded
to the State. The petitioners sent
the Commission further documents relating to the status of the domestic judicial
and administrative proceedings and investigations, and the Commission forwarded
the pertinent parts to the State.
9. On
September 28, 1998, the Commission adopted Report No. 75/98 and remitted it
to the State on December 10 that year. The Commission concluded that Argentina
had violated the rights to a fair trial and judicial protection stipulated
in Articles 8 and 25 of the American Convention and the right to property
established in its Article 21, “all of them in relation to the obligation
of the State to respect, investigate, punish and re-establish the violated
rights indicated in Article 1(1) of that instrument.” The Commission also
considered that the State had violated the right to a fair trial and the right
of petition set forth in Articles 18 and 24 of the American Declaration with
regard to Mr. Cantos. In the operative
part of Report No. 75/98, the Commission decided:
A. To recommend that
the State of Argentina re-establish all the rights of José María Cantos and,
among other measures, provide adequate reparation and compensation for the
above-mentioned violations […].
B. To transmit this report to the State and grant it a period
of two months to adopt the necessary measures to comply with the preceding
recommendation. In accordance with the provisions of Article 50 of the American
Convention, the State is not authorized to publish this report.
C. To notify the petitioner of the adoption of a report in this
case under Article 50 of the American Convention.
10. On
March 10, 1999, the Commission submitted the case to the Inter-American Court
(supra § 1).
iv
proceeding before the court
11. In
its application, the Inter-American Commission pled as follows:
Based
on the denial of justice of which José María Cantos has been a victim, by
the Argentine authorities, who arbitrarily abstained from effectively repairing
the grave damages that State agents caused him, the Commission requests the
Honorable Court to deliver judgment in this case declaring that the State
of Argentina has violated and continues to violate the rights to a fair trial
and judicial protection stipulated in Articles 8 and 25 of the Convention
and the right to property recognized in its Article 21, all of them in relation
to the obligation of the said State to respect, investigate, punish and re-establish
the violated rights indicated in Article 1(1) of that instrument.
The Commission also requests the Honorable Court:
1. To declare that the State has violated
the following rights of Mr. Cantos embodied in the American Declaration: the
right to a fair trial (Article XVIII) and the right of petition (Article XXIV).
2. To declare, based on Article 2 of
the Convention and on the pacta sunt
servanda principle, recognized in the jurisprudence of the Court, that
the State of Argentina has violated Article 50(3) of the Convention, by failing
to comply with the recommendations made by the Commission in its Report No.
75/98.
3. To order the State of Argentina to
fully re-establish the rights of José María Cantos and, among other measures,
provide adequate reparation and compensation for the said violations, in accordance
with the provisions of Article 63(3) of the Convention. The adequate compensation
should include material, mental and moral damages at their current value.
4. To order
the State of Argentina to pay the costs of the international bodies, including
both the expenses resulting from the proceeding before the Commission and
those resulting from this proceeding before the Court, and also the fees of
the professionals who assist the Commission in processing this case; and that,
at the corresponding procedural stage, a special segment should be opened
so that the Commission may detail the expenses that Mr. Cantos has incurred
by processing this case and establish reasonable fees for the professionals
involved and the accountants, so that they may be duly reimbursed by the State
of Argentina.
5. To declare that the State of Argentina
must repair and compensate all the adverse effects of the judgment delivered
by the domestic court that violated an international norm.
12. The
Commission appointed Robert K. Goldman, Carlos M. Ayala Corao and Germán J.
Bidart Campos as delegates and Raquel Poitevien and Hernando Valencia Villa
as legal advisers. The Commission
also named Susana Albanese, Viviana Krsticevic, María Claudia Pulido[5],
Ariel Dulitzky, Emilio Weinschelbaum and Martín Abregú as assistants. These assistants also acted as representatives
of the alleged victim.
13. On
April 16, 1999, after the President of the Court (hereinafter “the President”)
had made a preliminary examination of the application, the Secretariat of
the Court (hereinafter “the Secretariat”) transmitted it to the State.
14. On
May 19, 1999, Argentina appointed Ambassador María Matilde Lorenzo Alcalá
de Martinsen as its agent for the case and Luis Ugarte as its deputy agent. On March 31, 2000, Argentina revoked these
appointments and designated Ernesto Alberto Marcer as its agent and Ambassador
Leandro Despouy as its deputy agent. On
May 24, 2001, Argentina once again substituted its representatives and appointed
Andrea G. Gualde as its agent and María Rosa Cilurzo as its deputy agent.
15. On
May 19, 1999, Argentina appointed Julio A. Barberis as Judge ad hoc.
16. On
June 18, 1999, Argentina filed preliminary objections with regard to the competence
of the Court, based on Article 1(2) of the American Convention and under the
terms of its acceptance of the Court’s jurisdiction.
17. On
June 24, 1999, the Secretariat notified the brief filing objections to the
Inter-American Commission and the latter replied on August 27, 1999.
18. On
August 17, 1999, the Secretariat of the Court received the State’s answer
to the application.
19. On
April 23, 2001, the President decided to convene the parties to a public hearing
to be held at the seat of the Court on May 30, 2001, to hear their arguments
on the preliminary objections.
20. The
public hearing was held at the seat of the Court on the specified date.
There appeared before the Court:
for
the Inter-American Commission:
Robert K. Goldman, delegate
Raquel Poitevien, legal adviser
Susana Albanese, assistant
Emilio Weinschelbaum, assistant, and
Viviana Krsticevic, assistant
for
the State of Argentina:
Andrea G. Gualde, agent, and
María Rosa Cilurzo, deputy agent.
v
competence
21. Argentina has been a State party to the
American Convention since September 5, 1984.
On that day it also accepted the contentious jurisdiction of the Court.
In the instant case, the State argues in its objections that the Court
is not competent to hear the application based on Article 1(2) of the American
Convention and under the terms in which the State accepted the jurisdiction
of the Court. In accordance with the rule of the compétence de la compétence/Kompetenz-Kompetenz,
established in both the jurisprudence of this Court and in standard, ongoing
arbitral and juridical practice[6], this
Court is competent to hear the instant case.
Article 62(3) of the Convention recognizes this rule. Therefore, the Court will now decide on the
two objections that were filed.
vi
first preliminary objection
22. The
first preliminary objection that the Court will analyze and decide on relates
to Article 1(2) of the American Convention which states: “For the purposes
of this Convention, “person” means every human being.” Based on this text,
Argentine maintains that the American Convention is not applicable to legal
entities and that the companies of José María Cantos, which have been incorporated
under different regimes, are therefore not protected by Article 1(2) of the
Convention.
23. To
support its argument, the State invokes the practice of the Inter-American
Commission with regard to the interpretation of Article 1(2) of the Convention
and cites the following two passages, among others, extracted from statements
made by the Commission:
[t]hat the Preamble to the American
Convention on Human Rights and also the provisions of Article 1(2) establish
that ‘for the purposes of this Convention, “person” means every human being’
and, therefore, the system of natural persons and does not include legal entities
[... c]onsequently, in the inter-American system, the right to property is
a personal right and the Commission has authority to protect the rights of
an individual whose property is confiscated, but does not have jurisdiction
over the rights of legal entities, such as companies, or banking institutions,
as in this case[7].
[…] according to the second paragraph
of the norm transcribed above [Article 1], the person protected by the Convention
is ‘every human being’ [....]. Hence,
the Commission considers that the Convention grants protection to natural
persons, excluding legal entities from its sphere of application, because
they are legal fictions and lack real material existence[8].
24. For the time being, it will be useful to
accept the interpretation suggested in the passages cited above and the consequences
it would have. According to this opinion,
a civil or commercial company that suffered a violation of its constitutional
rights, such as the inviolability of defense in a lawsuit or the impunity
of its correspondence, would be unable to invoke Article 25 of the Convention
merely because it was a legal entity. Similar examples could be mentioned with regard to Articles 10 and
24 of the Convention, among others.
25. It is also worth examining Article 21 of
the American Convention with regard to private property, which is the subject
of this case. According to the interpretation
suggested by Argentina, which the Commission appears to share, if a landowner
acquires a harvesting machine to work his fields and the Government confiscates
it, he would be protected by Article 21. But if, instead of a landowner, it was a case
of two poor farmers who formed a company to buy the same harvester and the
Government confiscated it, they would not be able to invoke the American Convention
because the harvester in question would be owned by a company. Now, if these same farmers, instead of constituting
a company, bought the harvester in co-ownership, the Convention could protect
them because, according to a principle that goes back to Roman law, co-ownership
does not constitute a legal entity.
26. All legal norms always refer to human conduct
and describe it as permitted, prohibited or obligatory. When a legal norm attributes a right to a company,
it presumes a voluntary association of persons who establish a joint capital
fund to collaborate in operating a company in order to obtain individuals
benefits, by sharing the profits. The
law offers the individual a wide range of alternatives to regulate his relations
with other individuals and to limit his responsibility. Thus, there are general partnerships, corporations,
limited responsibilities, limited partnerships, etc. In any case, this organized union allows for
the coordination of individual efforts in order to attain a greater common
goal. Accordingly, a legal entity
that is different from its components is constituted; this, in turn, establishes
a capital fund, which presumes a movement of things or rights from the patrimony
of the partners to the company, introducing limits in the responsibility of
these partners towards third parties. In
this respect, the International Court of Justice in the Barcelona Traction case[9]
has differentiated between the rights of the shareholders of a company and
those of the company itself, indicating that domestic legislation grants shareholders
specific direct rights, such as those of receiving the agreed dividends, attending
and voting at general meetings, and receiving part of the assets of the company
when it is liquidated.
27. In the case sub judice, Argentina asserts that legal entities are not included
in the American Convention and, therefore, its provisions are not applicable
to them, since they do not have human rights.
However, the Court observes that, in general, the rights and obligations
attributed to companies become rights and obligations for the individuals
who comprise them or who act in their name or representation.
28. In addition, we could recall the Vienna
Convention on the Law of Treaties in this respect, as this Court has on several
occasions[10], and affirm that the interpretation alleged by the
State leads to unreasonable results, because it implies removing an important
group of human rights from protection by the Convention.
29. This Court considers that, although the
figure of legal entities has not been expressly recognized by the American
Convention, as it is in Protocol No. 1 to the European Convention on Human
Rights, this does not mean that, in specific circumstances, an individual
may not resort to the inter-American system for the protection of human rights
to enforce his fundamental rights, even when they are encompassed in a legal
figure or fiction created by the same system of law. However, it is worth making a distinction in order to identify which
situations could be examined by this Court within the framework of the American
Convention. In this respect, this
Court has already examined the possible violation of the rights of individuals
when they are shareholders[11].
30. In the case sub judice, legal file C-1099, processed before the Supreme Court
of Justice, confirms that all administrative and legal recourses, with the
exception of a criminal complaint and an amparo filed in 1972, at the onset
of the alleged facts, were submitted directly by Mr. Cantos in his “own name
and in the name of his companies.” Consequently,
this Court could examine the alleged violation of the rights of Mr. Cantos
under the Convention at the corresponding merits stage, in the terms of paragraphs
40 and 41.
31. Argentina does not explain the logic used
to derive the conclusion it reached from the text of Article 1(2) of the Convention
(supra §§ 22 and 23). However, international jurisprudence has reiterated
that those who seek to use logic must demonstrate the steps used in this operation[12]. Having demonstrated
that the interpretation of Article 1(2) of the American Convention is based
on an invalid reasoning, the Court considers that it must reject the objection
filed on lack of competence.
vii
second preliminary objection
32. The
other preliminary objection filed by Argentine is based on the terms on which
it accepted the jurisdiction of this Court.
As mentioned above (supra,
§ 21), the State became a party to the Convention on September 5, 1984, and
deposited the respective ratification instrument with the Secretariat of the
Organization of American States. On
the same date, it accepted the obligatory jurisdiction of the Court, but put
on record that the obligations it had assumed “would only take effect with
regard to acts that occurred after the ratification of the said instrument.” In view of this statement, Argentina maintains
that the Court is only competent to hear cases on acts that occurred after
September 5, 1984. The State considers
that the facts of the instant case occurred before that date and, therefore,
the Court is not competent to hear them.
33. Before
examining this objection on lack of competence, the Court deems it appropriate
to indicate some rules of international law that have not been set forth clearly
in this dispute.
34.
In this respect, it is evident from the text of the Convention that
a State may be a party to it and accept or reject the obligatory jurisdiction
of the Court. Article 62 of the Convention
uses the verb “may” to signify that acceptance of the jurisdiction is optional.
It should also be emphasized that the Convention establishes obligations
for States. These obligations are the same for all the
States parties, in other words, they bind in the same way and with the same
strength both the State party that has accepted the obligatory jurisdiction
of the Court and the State party that has not done so. Also, it is necessary to distinguish between “reservations to the
Convention” and “acceptance of the jurisdiction of the Court”. The latter is a unilateral act of each State,
governed by the terms of the American Convention as a whole[13]
and, therefore, not subject to reservations.
Although some doctrine refers to “reservations” to the acceptance of
the jurisdiction of an international court, in reality, this refers to limitations
in the acceptance of the jurisdiction and not, technically, to reservations
to a multilateral treaty.
35. When
codifying general law on this issue, Article 28 of the Vienna Convention on
the Law of Treaties establishes that:
Unless
a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act or fact which took
place or any situation which ceased to exist before the date of the entry
into force of the treaty with respect to that party.
36. It
is worth indicating that Argentina deposited the instrument ratifying the
American Convention and accepting the contentious jurisdiction of the Court
on the same date, in the understanding (pursuant to Article 62) that it would
only have effect with regard to juridical acts or facts that occurred after
the instrument ratifying the Convention and accepting the Court’s contentious
jurisdiction had been deposited.
37. In
view of the foregoing, the Court considers that the principle of the non-retroactivity
of international norms embodied in the Vienna Convention on the Law of Treaties
and in general international law should be applied, respecting the terms in
which Argentina became a party to the American Convention[14].
38. The
Court now examines the facts set out in the application, in accordance with
the terms in which Argentine ratified the Convention and accepted the Court’s
contentious jurisdiction. Among the
facts set forth (supra § 2), it
is necessary to determine those that may fall within the Court’s contentious
jurisdiction. In this respect, a first
series of facts comprises those that occurred mainly in the 1970s and allegedly
caused damages to the companies and person of Mr. Cantos, such as the searches
by the Revenue Department of the Province of Santiago del Estero, the seizure
of the accounting documentation, the detentions and the harassment. A second
category comprises the agreement signed by the Government of the Province
of Santiago del Estero and Mr. Cantos on July 15, 1982. The facts included in these two groups occurred before the entry
into effect of the Convention for Argentina and, therefore, do not fall within
the Court’s jurisdiction.
39. The
Commission argues that some of the facts of which the State is accused are
ongoing illicit acts; that is, the illicit acts continue to exist today. The Court does not consider it necessary to
examine here the legal theory of ongoing illicit acts[15];
it is sufficient that it confirm that, if any of the facts imputed to the
State were of this nature, it would not be a “fact that had occurred after
September 5, 1984”, the only category of facts for which Argentina accepted
the jurisdiction of this Court[16].
40. The
third category of facts with regard to which the contentious jurisdiction
of the Court may be exercised includes the proceedings before the Supreme
Court of Justice of Argentina after September 5, 1984, including the judgment
of September 3, 1996, if it were alleged that the said proceedings could constitute
per se violations of the American
Convention.
41. In
view of the foregoing, the Court considers that it should only accept partially
the second preliminary objection.
viii
operative
paragraphs
42. Therefore,
the court,
decides:
unanimously,
1. Not to accept the first preliminary objection of lack of competence
based on Article 1(2) of the American Convention on Human Rights.
2. To accept partially the second preliminary objection on lack
of competence in accordance with the terms of paragraphs 38, 39, 40 and 41
of this judgment.
3. To continue hearing and processing the instant case.
4. To authorize its President to duly convene the State and the
Inter-American Commission on Human Rights to a public hearing on the merits
of the case, to be held at the seat of the Inter-American Court of Human Rights.
5. To notify this judgment to the State and the Inter-American
Commission on Human Rights.
Done at San José, Costa Rica, on September 7, 2001,
in Spanish and English, the Spanish text being authentic.
Antônio A. Cançado Trindade
President
Hernán Salgado-Pesantes
Oliver Jackman
Alirio
Abreu-Burelli
Sergio García-Ramírez
Carlos Vicente de Roux-Rengifo Julio A. Barberis
Judge ad hoc
Manuel E. Ventura-Robles
Secretary
So
ordered,
Antônio A. Cançado Trindade
President
Manuel E. Ventura-Robles
Secretary