REPORT Nº 3/02
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
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
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
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
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.
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
PROCESSING BEFORE THE COMMISSION
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
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.
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.
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.
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.
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.
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
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.
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.
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
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
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.
POSITION OF THE PARTIES
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
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.
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.
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.
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.
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
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.
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
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
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
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.
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.
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.
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’
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.
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
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.
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
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.
ANALYSIS OF ADMISSIBILITY
Competence of the Commission ratione
personae, ratione materiae, ratione temporis and
The Commission is competent to examine the petition 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
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.
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.
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.
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, 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.
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.
Other requirements for the admissibility of
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.
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.
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
Commission concludes that May 3, 1994 is thus the relevant date
for the purposes of its admissibility analysis.
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
Time period for submission of the petition
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.
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
proceedings and res judicata
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
In the present case, the parties have not claimed and the
proceedings do not indicate the existence of either of these
circumstances of inadmissibility.
of the facts alleged
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.
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
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.
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.
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
Based on the factual and legal arguments set forth above,
and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
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.
notify the parties of this decision.
To continue with the analysis of the merits of the case.
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