MERCIADRI DE MORINI
On June 15, 1994, María Merciadri de Morini (hereinafter “the
petitioner”) filed a petition before the Inter-American Commission on
Human Rights (hereinafter “the Commission,” the “Inter-American
Commission,” or “the IACHR”) in which she alleged that the Argentine
Republic (hereinafter “the State,” the “Argentine State,” or
“Argentina”) had violated her rights to due process (Article 8), the
right to participate in government (Article 23), the right to equal
protection (Article 24) and the right to judicial protection (Article 25),
set forth in the American Convention on Human Rights (hereinafter “the
Convention” or “the American Convention”).
The petitioner alleged that on the list of six candidates running
on the Unión Cívica Radical party ticket for election as
national deputies from the Province of Córdoba, one woman was fourth on
the list and another sixth. This was a violation of Law 24.012 and its governing decree Nº
379/93, which required that two women be listed among the first five
positions. The petitioner
invoked the available domestic remedies before the courts; however, the
latter not only dismissed her complaint but also denied her procedural
standing to bring an action. Finally,
the Supreme Court denied her appeal on the grounds that it was moot,
ruling that “the votes that the Unión Cívica Radical carried in
the October 3, 1993 election entitled it to four seats in the Chamber of
Deputies; this case was about who ended up in fifth place.”
The Commission declared the case admissible in Report 102/99 of
September 21, 1999, approved during its 104th regular session.
The Commission also placed itself at the disposal of the parties
for the purposes of reaching a friendly settlement based on respect for
the rights upheld in the Convention, and requested the parties to submit
their views on that possibility. A
friendly settlement agreement was reached on March 8, 2001, when the
parties signed an agreement in Buenos Aires wherein the petitioner states
that Presidential Decree Nº 1246, issued by the President of the
Argentine Republic, Fernando de la Rúa, “adequately covers the
fundamental issues that prompted the complaint filed” before the IACHR.
The present friendly settlement report, prepared in accordance with
Article 49 of the Convention and Article 41(5) of the Commission’s Rules
of Procedure, sets forth the facts alleged by the petitioner and the
friendly settlement reached, as well as the Commission’s decision to
publish the report.
PROCEEDINGS BEFORE THE COMMISSION
The petitioner filed her petition with the IACHR on June 15, 1994.
A copy of that petition was then forwarded to the State on June 16,
1994. The State responded on
January 9, 1995, and the petitioner sent her comments on the State’s
response on February 27, 1995. The
State requested and received an extension and sent its response on May 4,
1995. The petitioner presented her comments on June 5, 1995 and the
State answered on August 10, 1995. On
October 11, 1995, the petitioner sent to the Commission a new
communication wherein she reiterated her previous arguments, and on
November 17, 1997, forwarded rulings in other court cases that would
support her complaint. The
State’s response was received on February 18, 1998, and on March 31,
1998, observations were received from the petitioner.
The Commission approved Report Nº 102/99 on September 21, 1999,
during its 104th regular session. In
that report, the Commission declared that it was competent to hear this
case and that the petition was admissible under Articles 46 and 47 of the
Convention. In accordance
with Article 48(1)(f) of the Convention, the Commission, on its own
motion, also made itself available to the parties with a view to arriving
at a friendly settlement of the matter based on respect for the human
rights established in the Convention.
On October 12, 1999, the Commission sent the Admissibility Report
to the parties.
On October 18, 1999, the petitioner supplied additional
information. On January 4,
2000, the State requested an extension and on March 14, 2000 informed the
Commission that it was engaged in talks with the petitioner with a view to
arriving at a friendly settlement of the case.
On June 7, 2000, the petitioner informed the Commission that she
was still in talks with the State. On
August 17, 2000, the State reported that a draft decree governing Law
24.012 had been prepared that would adjust this provision to conform to
the petitioner’s position. It further reported that the competent State authorities had
the draft under study. The
State and the petitioner signed the friendly settlement on March 8, 2001.
The State forwarded the text of the agreement to the Commission by
a note of that same date.
The petitioner alleged that by mutual agreement among its leaders,
the Unión Cívica Radical
political party of the Province of Córdoba had put together the list of
six names that it was running for the national deputy seats up for
election on October 3, 1993. It
put the names of two women in third and sixth place on the list, without
taking into account that the party had five national deputy seats up for
election. This was a
violation of Law 24.012, called the Quota Act, enacted on November 6,
1991, which guarantees that at least thirty percent (30%) of the
candidates on the political parties’ slates for elective office are to
be women, in numbers “proportional to the chances of being elected.”
Article 2 of Decree 378/93, which is the law’s governing decree,
stipulates that “the thirty percent quota that Law 24.012 sets for
women, shall be regarded as a minimum.
If application of the 30% formula results in fractions that are
less than whole numbers, the minimum number shall be the number shown in
the table attached as Appendix A, which is an integral part of this
decree.” The appendix in
question states: “seats to
be filled, five; minimum number: two.”
This provision is binding upon political parties when putting
together their lists of candidates, and the consequence of failure to
comply shall be denial of certification.
The law also establishes the corollary right of citizens entitled
to vote under the constitutional right of suffrage,
to be able to vote for slates of candidates on which women are represented
in accordance with the formula that the law stipulates.
The petitioner alleged that, as a registered voter affiliated with
that political party, she filed a complaint with the Board of Elections
challenging the slate. The
complaint was rejected on the grounds that the “list of candidates was
the product of a consensus built among all factions of the party, which
agreed upon a single list.” When
she filed an appeal, the federal court denied her request and declared
that she did not have legal standing to bring an action.
The petitioner appealed that decision, but the Federal Elections
Court also denied that she had legal standing to bring an action, on the
grounds that she had no personal stake in the matter. The petitioner
contends that the list drawn up by the Unión
Cívica Radical party violates the right of the voter to equal
opportunity, for men and women alike, to stand for elective office.
She further argues that any citizen has the right to challenge the
list, and need not be the party injured by his/her place on the list of
candidates. The classic requisite that the plaintiff must have had a
subjective right violated or his/her concrete interests disregarded is not
the applicable paradigm, especially since the Argentine Supreme Court’s
ruling in Ekmekdjian v/Sofovich.
She also cites Article 57 of the Political Parties Statute Nº
23.298, which gives members of political parties standing before the court
“when the rights they are given in the Statute are denied and when the
recourses within the party have been exhausted.”
The petitioner filed an extraordinary appeal seeking reversal of
the decision on grounds that it was unconstitutional, but the court
refused to allow her appeal to go forward on the grounds that the election
had been held on October 3, 1993, and that the matter had therefore become
moot. Finally, she filed a
complaint with the Supreme Court because of the lower court’s refusal to
allow her appeal to go forward. The
Supreme Court, however, denied her appeal arguing that “the votes that
the Unión Cívica Radical carried in the October 3, 1993 election
entitled it to four seats in the Chamber of Deputies; this case was about
who ended up in fifth place.” The
petitioner considers that the question was not “moot” because there is
a very concrete “right of expectation” that has to be upheld were a
vacancy to occur among those elected.
As matters stand, if such a vacancy were to occur, it would be
filled by a man–the one who is in fifth place—and not by a woman.
It is for that reason that a woman should have been listed in fifth
place and the man in sixth. Even
had there been only four seats to be filled, two women should have been
elected because one woman alone is equivalent to just 25% of the total,
which is below the legally mandated quota.
petitioner alleged that the State violated Articles 8 and 25 of the
Convention because the court of first instance had ruled that she did not
have legal standing to bring suit. The
petitioner further argued that, when the Supreme Court denied her
complaint, it violated the principle of equality before the law, upheld in
Article 24 of the Convention, thus violating her right to participate in
government, provided for in Article 23 of the Convention.
The State and the petitioners signed a friendly settlement, the
text of which establishes the following:
Between the Argentine State, represented by the Minister of Foreign
Affairs, International Trade and Worship, Adalberto Rodríguez Giavarini,
and the petitioner in Case Nº 11.307,
MARIA TERESA MERCIADRI de MORINI, the following agreement is hereby
Concerning the petition filed by Dr. MORINI before the
Inter-American Commission on Human Rights on June 15, 1994, alleging
violation of rights recognized in the American Convention on Human Rights
in Articles 8 (guarantees of due process), 23 (right to participate in
government), 24 (equal protection), and 25 (judicial protection), which
petition the Commission now has before it and declared admissible on
September 21, 1999 through Report Nº 102/99, the parties wish to arrive
at a friendly settlement, under the terms of Article 48(f) of the American
Convention on Human Rights.
Accordingly, on December 28, 2000, the President of the Nation, Dr.
FERNANDO DE LA RUA, promulgated decree Nº 1246 –a copy of which is
attached-, which contains the
provisions by which law Nº 24.012 shall be implemented and
strikes down regulatory decree Nº 379/93.
The Argentine State recognizes that this decree serves to ensure
women’s concrete and effective participation in the lists of candidates
for national elective office, thus reinforcing the rights upheld in law
24.012, as well as Article 37 of the Constitution, and in the counterpart
provisions of the international human rights treaties to which Argentina
Petitioner Dr. MARIA TERESA MERCIADRI de MORINI hereby undertakes
to desist from the petition she filed with the Inter-American Commission
on Human Rights, registered as case Nº 11.307, as she recognizes that
Decree Nº 1246/00 adequately provides for the fundamental issues she
raised in the complaint she filed with the Commission.
Both parties are grateful to the Inter-American Commission on Human
Rights for its important contribution and ask that it give its approval to
this friendly settlement and close case 11.307.
The above-cited friendly settlement was signed in Buenos Aires on
March 8, 2001, by the Minister of Foreign Affairs, International Trade and
Worship and by the petitioner, Dr. María Teresa Merciadri de Morini, in
the presence of Dr. Santiago Canton, representing the Inter-American
Commission on Human Rights, and the President of the National Women’s
Council, Dr. Carmen Storani.
Decree Nº 1246, which President de la Rúa promulgated mindful of
the provisions of the Constitution and the friendly settlement process in
this case, contains the provisions by which Law Nº 24.012 shall be
implemented and repeals the previous implementing decree so as to ensure
full compliance with the provisions of that law:
AIRES, [DEC. 28, 2000]
SEEN law No. 24,012 which replaces Article 60 of the National Electoral
Code and its Implementing Decree No. 379 of March 8, 1993, and
on November 6, 1991, the HONORABLE CONGRESS OF THE NATION enacted a law
requiring that women be included on the political parties’ lists of
candidates for elective office; the consequences of a failure to comply
with the obligatory minimum percentage stipulated in Law Nº 24.012
extends to denial of certification for the slate in question.
the provisions in question apply to slates of candidates presented for
elective office as national deputies, senators and members of a
the reasoning at the time the law was enacted was that the purpose of Law
Nº 24.012 was to effectively integrate women into political life, thus
avoiding the delay that would ensue were women to be excluded from the
ranks of candidates having a reasonable expectation of being elected.
a consideration taken into account when Decree Nº 379/93 was promulgated
was that general rules had to be established to standardize implementation
of the law in question, so that all political parties and alliances would
apply the law in the same manner, thereby avoiding subsequent party or
this intention notwithstanding, the differing interpretations that the
various political parties gave to the law and even the inconsistent
rulings of the courts on this matter necessitated a law that would take
into account the clearest and most protective interpretations by the
important cases have not been able to be presented before the Supreme
Court because of the brevity of the period between a challenge to the list
and election day.
this situation has not changed, despite the clear language of Article 37
of the Constitution in effect since 1994 and Article 4(1) of the
Convention on the Elimination of All Forms of Discrimination against
Women–which has the status of constitutional law under Article 75(22) of
the Constitution as amended in 1994.
one aspect where the inconsistency is greatest is the position of women
candidates on the lists; in many cases, only men have ended up in listed
positions that have any expectation of being elected to office, in
violation of Law Nº 24.012, which clearly stipulates that women are to
occupy, at a minimum, THIRTY PERCENT (30%) of the places on a party’s
ticket that have a reasonable possibility of being elected.
for all these reasons and bearing in mind the provisions of the
Constitution, and inasmuch as the Inter-American Commission on Human
Rights has declared Case Nº
11.307 –María MERCIADRI de MORINI–ARGENTINA to be admissible and has
placed itself at the disposal of the parties for the purpose of arriving
at a friendly settlement based on respect for the rights recognized in the
American Convention on Human Rights,
it is imperative that Decree Nº 379/93 be repealed and that a new
decree be promulgated that effectively ensures compliance with the
provisions of Law Nº 24.012, the Constitution and international human
rights treaties, which have constitutional primacy.
this measure is issued in exercise of authorities based on Article 99(2)
of the Constitution.
PRESIDENT OF THE ARGENTINE NATION
1 - Article 60 of the National Electoral Code, as replaced by Law Nº
24.012, shall apply to all elective offices for deputy and senator to the
National Congress and members of a National Constituent Assembly.
2 - The THIRTY PERCENT (30%) of the offices that are to be filled by
women, as Law Nº 24.012 prescribes, is the minimum percentage. In cases where mathematical application of this formula
leaves less than a whole number, the minimum number shall be the next
highest whole number and shall be governed by the formulas in the table
attached as Appendix I, which is an integral part of this Decree.
3 - The minimum percentage required by Article 60 of the National
Electoral Code replaced by Law Nº 24.012 shall apply to all candidates on
the list that every political party, confederation or temporary alliance
nominates. To be in full
compliance with the thirty percent requirement, however, it must be
applied to the number of seats that the political party, confederation or
temporary alliance has up for re-election.
4 - When a political party, confederation or alliance nominates a
candidate for the first time, seeks an incumbent’s re-election or is not
seeking re-election of any candidate, it shall, for purposes of Article 3
of this Decree, bear in mind that the number of seats up for re-election
is equal to ONE(1). In that
case, it shall make no difference whether the candidate in first place is
a man or a woman. However,
the candidate second on the ticket must be someone of the opposite sex to
the one whose name figures first on the ticket.
TWO (2) seats are up for re-election, one of the nominees shall always be
just ONE(1) or TWO(2) seats are up for re-election and the woman on the
ticket is in the third slot, this shall not constitute compliance with Law
more than TWO(2) seats are to be filled, a woman must figure in at least
one of the first THREE(3) slots on the ticket.
5 - When ONE(1), TWO(2) or more seats are up for re-election, the
calculation shall always be done starting with the first spot and the list
shall have at least ONE(1) woman for every TWO(2) men in order to meet the
minimum percentage required under Law Nº 24.012.
Until the THIRTY PERCENT (30%) quota required under Law Nº 24.012
has been met, no three consecutive slots may be filled by persons of the
same sex. Whatever the case,
affirmative action measures shall be the preferred course, so that men and
women truly have equal opportunity to seek elective office.
6 - Permanent or temporary confederations or alliances shall abide by the
provisions established in the preceding articles, and always ensure that
names of at least THIRTY PERCENT (30%) of the certified lists are those of
women. This rule obtains
independently of their party affiliation, and with the same requirements
as those established for the political parties, without exception.
7 - Political parties, confederations and alliances at the district and
national levels must amend their bylaws so that the system required under
Law Nº 24.012 and the provisions of this Decree, can take full effect
sufficiently in advance of the 2001 election to fill seats in the
8 - If, using the procedure spelled out in Article 61 of the National
Electoral Code and the amendments thereto, a judge with electoral
jurisdiction finds that any of the women candidates among the minimum
THIRTY PERCENT (30%) required under Law 24.012, do not have the
qualifications for the office or were listed on the slate below where they
should have been according to the system established by this decree, said
judge shall, in the same ruling on the candidates’ qualifications, order
the party, confederation or permanent or temporary alliance to replace the
unfit candidates or move up the candidates whose names are too far down on
the list. They must do so
within a period of FORTY-EIGHT (48) hours of being notified of the
decision. If the ruling is
not obeyed, the Court shall, on its own motion, move the women whose names
appear lower on the list. In
doing so, it must also be taken into account that the names on the list of
alternates must also meet the requirements set out in this Decree.
9 – If, prior to the election, a women whose name appears on a certified
list dies, withdraws from the race, becomes incapacitated, or ceases to
serve in the position for whatever reason, her place on the list of
candidates shall be filled by the next woman whose name appears on the
respective list. This measure
will only apply to the replacement of women.
10 – In all districts nationwide, the lists or nominations consisting of
ONE (1) or several persons nominated to fill national elective offices of
any kind, shall abide by the minimum percentage established by Law Nº
24.012 and the provisions of this Decree.
11 – All persons in a district’s voter registration records have the
right to bring a case in the Electoral Court challenging any list of
candidates when they consider that the list was configured in violation of
Law Nº 24.012.
12 - Decree 379 of March 8,
1993, is hereby repealed.
13 - Let it be so notified, published, and recorded and filed with the
National Bureau of Government Records.
to be filled
Minimum number Seats to be filled
DETERMINATION AS TO COMPATIBILITY AND COMPLIANCE
The IACHR would again point out that under Articles 48(1)(f) and 49
of the Convention, the friendly settlement process is undertaken with a
view “to reaching a friendly settlement of the matter on the basis of
respect for the human rights recognized in [the] Convention.”
The acceptance of this process expresses the good faith of the
State to comply with the object and purpose of the Convention pursuant to
the principle of pacta sunt servanda,
through which states must comply with the obligations they undertake in
The Commission would also like to reiterate that the friendly
settlement procedure contemplated in the Convention permits the resolution
of individual cases in a non-contentious manner, and has been demonstrated
in cases relative to various countries to offer an important approach to
resolving matters that both parties may utilize.
The Inter-American Commission has closely followed the friendly
settlement process in the instant case.
The information recounted above demonstrates that the agreement has
been fulfilled in accordance with the provisions of the American
Convention. The Commission
greatly values the efforts made by both parties to arrive at a settlement
based on the object and purpose of the Convention.
As the Commission has noted on other occasions, achieving the free
and full participation of women in political life is a priority for our
The purpose of Law Nº 24.012 is to effectively integrate women
into political life, and Decree Nº 1246, promulgated as an outcome of the
settlement, has the complementary objective of guaranteeing effective
compliance with that law.
Based on the foregoing considerations and given the procedure
provided for in Articles 48(1)(f) and 49 of the American Convention, the
Commission would like to once again convey its deep appreciation for the
efforts made by the parties and its satisfaction with the friendly
settlement arrived at in the instant case, based on the object and purpose
of the American Convention.
On the basis of the considerations and conclusions set forth in
THE INTER-AMERICAN COMMISSION ON HUMAN
To approve the terms of the friendly settlement signed on March 8,
To make public this report and include it in the Commission’s
Annual Report to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human Rights,
in the city of Washington D.C., on October 11, 2001.
Grossman, President; Marta Altolaguirre, Second Vice-President; Commission
members Hélio Bicudo, Robert K. Goldman, Peter Laurie and Julio Prado
The First Vice President of the IACHR, Juan E. Méndez, an Argentine
national, did not participate in the discussion or
decision on this report, in keeping with Article 19(2)(a) of
the Commission’s Rules of Procedure.
The petitioner invokes Article 60, paragraph 2, in
fine of Law 24.012.
The petitioner invokes Article 37 of the Constitution, which
guarantees “full exercise of the right to participate in
This decision ruled, inter alia,
on the hierarchy that international human rights treaties have
within Argentina’s legal system.
The translations of this and other documents to English as used in the
present report were prepared by the Commission.
IACHR, Report No
68/99, Case 11.709, Luis María
Gotelli (h). Argentina. Decision of May 14, 1999.
IACHR, Friendly Settlement Report No 90/99, Case 11.713, Enxet-Lamenxay and Kayleyphapopyet ‑Riachito‑
Indigenous Communities. Paraguay. Decision of September 29, 1999.
IACHR, “Considerations Regarding the Compatibility of the
Affirmative Action Measures Designed to Promote the Political
Participation of Women with the Principles of Equality and
Report of the IACHR 1999, OEA/Ser.L/V/II.106, Doc. 3 rev., 13
April 2000, Vol. II, Chapter VI, Section IV; see Report
of the Inter-American Commission on Human Rights on the Status of
Women in the Americas, OEA/Ser.L/V/II.100, Doc. 17, 13 Oct. 1998,