REPORT Nº 122/01
PROCEEDINGS BEFORE THE COMMISSION
On September 26, 1995, the Inter-American Commission on Human
Rights (hereinafter the “Commission” or “IACHR) received a complaint
against the State of Argentina in connection with the situation of Wilma
Rosa Posadas. On October 10, 1995, the Commission acknowledged receipt of
the complaint and informed the petitioner that it would not be able to
process her communication because the requirements stipulated in the
Commission’s Regulations had not been fulfilled.
Specifically, the Commission indicated that, according to its
review, the facts of her case did not tend to characterize a violation of
the rights guaranteed under the Convention, as required under Article
47(b). On October 30 of that
year, the petitioner requested clarification from the Commission as to the
meaning of the note wherein it had advised her that it could not process
the complaint, specifically as to whether the Commission’s Executive
Secretariat had the authority to adopt a decision of that type.
On November 17, 1995, the petitioner sent a communication via fax,
wherein she asked that the Executive Secretariat’s decision be reviewed,
and if upheld, that it be set forth in a duly substantiated decision on
petitioner reiterated her request in an undated communication contained in
the case file. Finally, on
January 14, 2000, with the representation of an attorney, the petitioner
submitted a new petition to the Commission recounting the same facts.
The petition was registered as number 0015/00. Copies of the same documents she had enclosed with her
original petition were attached.
The petitioner alleged violations of the rights protected in
Articles 4 (right to life), 5 (right to humane treatment), 8 (right to a
fair trial), 21 (right to property) and 25 (right to judicial protection)
of the American Convention on Human Rights.
DESCRIPTION OF THE FACTS AND ARGUMENTS
From March 26, 1979 to May 27, 1991, Wilma Posadas worked as a
secretary in the legal department of the firm of Astilleros
Alianza S.A. de Construcciones Navales, Industrial, Comercial y Financiera
(hereinafter “Alianza”). On
May 27, 1991, she received a telegram advising her that she was being
discharged from the company. The
reason cited for her dismissal was a lack of work not attributable to the
company. According to the
petition, Alianza refused to pay the petitioner her final month’s salary
and the overtime and wage differentials she was owed.
It also refused to give her any certification of her last years of
service, which she needed to claim the benefits of early retirement.
Having rejected the cause invoked by Alianza and received no
response, on September 2, 1991, the petitioner filed suit against the firm
in National Labor Court No. 11, demanding payment of US$19,440.12 for her
last month’s pay, salary differentials, unpaid overtime and compensation
for dismissal without just cause. In his decision of May 5, 1993, the Labor Court Judge
concluded that the grounds the firm had claimed for her dismissal did not
appear to be justified. He
thus upheld part of the petitioner’s suit and ordered Alianza to pay
$10,900 pesos for severance and wages; that is, compensation for failure
to give advance notice, severance compensation, compensation for wages,
payment of the last month of work, compensation for unpaid vacation time
and a portion of the annual bonus. However,
the judge did not uphold her demand for payment of overtime and salary
differentials, because the upper-level administrative personnel in the
legal office, including legal secretaries, were not covered under any
collective labor agreement and therefore were not so entitled.
On May 27, 1993, the petitioner appealed the lower court
ruling before the Appellate Labor Court, which in a ruling of April 29,
1994, agreed to hear the overtime complaint and decided to increase the
sum of the award to $13,601 pesos. Dissatisfied with the appellate court
ruling, on June 28, 1994 the petitioner filed a special appeal, which that
same court denied. Finally,
the petitioner filed an extraordinary appeal before the Supreme Court
which, in a ruling of March 28, 1995, dismissed it on the grounds that the
appeal sought was inadmissible.
The petitioner argues, inter
alia, that the rulings at the three levels of the judiciary that
intervened in the case were inconsistent with the most elementary notions
of justice, as they arbitrarily stripped her of what belonged to her; that
when the case was still before the lower court, a “systematic-arbitrary
‘mutilation’ of important evidence” occurred and that in a
“flagrant affront to the
objective truth,” more than 50% of the pension she would have been
entitled to receive with the higher salary that was her real salary was
frozen “for life” and she was assigned an amount that was less than
what she was legally entitled to receive in overtime.
The information in the case file indicates that the petitioner had
access to the various remedies under domestic law and that the courts
upheld the better part of her legal claims. The lower court found that her
dismissal was without just cause and ordered the firm of Alianza to pay
the petitioner not just the last salary owed but also all social benefits
to which she was entitled, as well as compensation for the damages that
the dismissal caused. Then
the appellate court not only upheld the lower court ruling but ordered
payment of the overtime she was due.
Because the exact amount could not be calculated, the appellate
court estimated the amount in accordance with the law.
Therefore, the only claim that the petitioner did not win in the
local courts was the claim concerning salary differentials.
However, both the lower court and the appellate court ruled that
the petitioner was not entitled to the increases ordered by the Argentine
Naval Workers Union, since as the petitioner herself acknowledged, she
“was not covered under the agreement and documents signed by that
as her post was classified as upper level administrative personnel.
From the evidence supplied by the petitioner, the Commission
concludes that the refusal to examine evidence that the petitioner is
claiming was due to the fact that the evidence in question was requested
appellate court ruling on this particular point was that there is a legal
deadline by which a litigant must ask the court to order evidence; because
that request for evidence was not made within the legal time frame, the
evidence was inadmissible.
Therefore, in the instant case, while the Commission observes the
petitioner’s deep sense of dissatisfaction with the outcome of the case,
it does not find anything arbitrary in its handling.
The State’s obligation to administer justice is a guarantee of
the means but not of the outcome, hence, its duty is not breached just
because the outcome does not satisfy all the petitioner’s claims.
Thus, mere dissatisfaction with the outcome obtained from the
administration of justice is not sufficient to disqualify it as arbitrary.
Under the preamble of the American Convention on Human Rights, the
protection that the organs of the inter-American system for the
protection of human rights offers is intended to complement the protection
afforded by the local courts.
The Commission cannot take upon itself the functions of an appeals
court in order to examine
alleged errors of fact or law that local courts may have committed while
acting within the scope of their jurisdiction, unless there is unequivocal
evidence that the guarantees of due process recognized in the American
Convention have been violated. In the instant case, the Commission finds
nothing imputable to the administration of justice in Argentina that would
tend to characterize a violation of the rights protected in that
11. For these reasons, the Commission considers
that the material facts of the petition under study do not tend to
establish a violation of the American Convention and therefore declares it
inadmissible, pursuant to Article 47(b) of the American Convention.
Based on the analysis and conclusions set forth in this report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare the present petition inadmissible.
2. To notify the petitioner of this
3. To publish this decision and
include it in the Commission’s Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights in the city of Washington, D.C., on October 10,
Claudio Grossman, President; Marta Altolaguirre, Second Vice-President; Commission members Hélio Bicudo, Robert K. Goldman, Peter
Laurie and Julio Prado Vallejo.
The First Vice President of the IACHR, Juan E. Méndez, an Argentine
national, did not participate in the discussions or vote on this
petition, in keeping with Article 17(2)(a) of the Commission’s Rules
Appellate Labor Court, ruling of April 29, 1994.
National Labor Court Nº 11, ruling of May 5, 1993.
This was the finding of the Inter-American Court of Human Rights in
the Godinez Cruz Case
concerning the obligation to prevent and investigate crimes.
Judgment of January 20, 1989, par. 188.
The preamble to the American Convention on Human Rights justifies
international protection in the form of a convention to reinforce or
complement the protection afforded by the domestic law of the American