REPORT OF THE INTER-AMERICAN COMMISSION
RESOLUTION Nº 17/89
April 13, 1989
Case 10.037 refers to an alleged violation of the right of personal
freedom stipulated I Article 7 of the American Convention on Human Rights
(hereinafter the Convention) and, particularly, to the guarantees set out in
subsection 5 of the aforesaid provision. According
to the complaint, Argentine citizen Mario Eduardo Firmenich, being tried in two
proceedings in the regular Argentine courts and currently imprisoned, has been
denied the benefit of release requested under Article 379 (title 18), subsection
6, of the Code of Criminal Procedure of the Argentine Republic which, in
essence, corresponds to the guarantee established under Article 7, subsection 5
of the Convention.
The complaint, dated June 21, 1987 meets the formal requirements of
Article 46, (d) of the Convention and Article 32 of the Regulations of the
Inter-American Commission on Human Rights (hereinafter the Commission).
The complaint has been filed within the six-month term set forth in
Article 46; (c) of the Convention, and the appeals filed against said denials,
including remedies filed with the Supreme Court.
The complaint is not subject to other international procedures and,
therefore, meets the requirement of Article 46, (c) of the Convention (Article
39 of the Regulations of the Commission).
The complaint is not a repetition of a prior petition examined by the
Commission and, therefore, also meets the requirement set out in Article 47 (d)
of the Convention (Article 39 (c) of the Regulations of the Commission).
As will be observed in the summary of the complaint and as regards the
requirement set out in Article 46, 1(a) of the Convention (Article 37 of the
Regulations of the Commission), prior to the acceptance of a complaint, all
internal remedies must have been exhausted under the generally acknowledged
principles of international law, it should be pointed out that since the problem
of the release of the accused is an issue in the trials against Firmenich, the
requirement regarding internal remedies has been met by the corresponding
requests for release and the decisions rejecting said petitions.
Furthermore, the complainant, under rule 397 of the Code of Criminal
Procedure, filed an appeal with the Supreme Court and said appeal was rejected.
Said measures completed, in the Commission's judgment, all internal
actions which the complainant could take requesting application of the
guarantees mentioned in Article 7, subsection 5 of the Convention, thereby
exceeding the requirement specified in Article 46, 1(a) of the Convention on
filing of internal remedies (Art. 37 of the Regulations of the Commission),
without prejudice to the proceedings during which said questions were raised.
The complaint, dated July 21, 1987, states, in summary:
That a petition for the release of the prisoner was submitted on October
2, 1986, to the judges trying the prisoner Firmenich, and that said petition was
That the corresponding appeals were brought against said refusals before
the Supreme Court (Art. 397 of the Code of Criminal Procedure) and that said
appeals were turned down.
That said refusals violated provisions in Article 1 of the Convention
stating that the Parties thereto undertake "…to respect the rights and
liberties acknowledged herein and to guarantee their full and free exercise by
anyone subject to their jurisdiction, without any form of discrimination
whatsoever…" as well as the guarantee set out in Article 7, subsection 5,
which provides for the possibility of the prisoner's release, "without
prejudice to further trial proceedings."
That the abovementioned guarantees did not originate in "concessions
which States or judges can graciously make according to prevailing political
interest or particular criteria of the judge who must apply the law" and
that neither are they abstract expressions but instead, must be applied by
virtue of the internal law of the States, thereby making it possible to reach
the following conclusion: either
Article 7 (b) of the Convention is applicable under Argentine law, according to
Article 379, 6 of the Code of Criminal Procedure or it is not applicable;
according to the first assumption, a reasonable trial period shall depend on the
term set out in said provision and not "on the particular criteria of a
given judge called upon to apply the rule…"
That the fact that Article 379 of the Code of Criminal Procedure states
that "release may be granted"… etc., leads to the strange
interpretation under which the judicial authority that decides may or may not
order that the prisoner be released, according to its particular criteria and
that, as a result thereof, the benefit of freedom during trial under Argentine
law is subject to the political inclinations, very particular views of the judge
and the indiscriminate application of the reservation set out in Article 380 of
the abovementioned Code, which states:
Spite of provisions in the preceding article, a request for release of the
prisoner may be rejected when the objective assessment of the characteristics of
the act and the personal conditions of the accused could, in essence, make it
possible to assume the abovesaid prisoner will attempt to evade justice.
The provisions in this article shall not restrict the application of
subsections 2, 3, 4, and 5 of the preceding article.
That, on the other hand, the above construction overlooks the legislative
history which begins with the opinion of the Executive Branch itself, when it
on the other hand, it introduces an amendment designed to provide effectiveness
for provisions set out in the Federal Code of Criminal Procedure as regards the
maximum length for trials, a provision that has remained a dead letter, to the
shame of a legally civilized nation.
That the abovementioned presentation did not mention any reservation
regarding more or less serious trials or more or less relevant accused.
In this regard, the complainant cites Congressman Juan L. Cartese, who
regards sub-section 6 the bill submitted by the Executive introduces a new
assumption for the release of prisoners, which fully repairs an actual injustice
current even to this date. The rule
in Article 701 indicates two years as the maximum duration for a criminal
proceeding. When the proceeding
exceeds said limit, the accused has to accept, even to this date, this irregular
situation and has to remain in custody. This
inclusion will no longer make those individuals who have the misfortune of being
on trial bear the burden of the law's delay and, under this assumption, those
being held may be released, far beyond any consideration mentioned in other
provisions of the law.
That this opinion, (shared by other Congressmen) is far beyond the
"arbitrary and illegal construction of participating judges when deciding a
petition for the requested benefit."
That Article 701 of the Code of Criminal Procedure provides that
"all trials must be completed within two years; delays resulting from
motions by the parties, proceedings related to official letters or letters
rogatory, depositions or testimony of expert witnesses or other necessary
proceedings, whose length is not dependent on the activity of the courts, shall
not be computed."
That a confusion could exist in connection with the scope of Article 379
of the Code of Criminal Procedure, as related to Article 701 of the selfsame
Code, in deciding whether subsection 6 of Article 379 encompasses the entire
text of Article 701 (as is held by the decisions of the trial judges refusing to
release Firmenich), although the logical reading indicates that subsection 6 of
Article 379 refers only to the two year term mentioned in the first portion of
Article 701, even if it cannot be construed that this term is without prejudice
to the other circumstances listed in the abovementioned Article 379.
In conclusion, the maximum term provided for by law (Article 701) is 2
years, since otherwise the "right granted becomes illusory…"
That the judges, "in their persecutory zeal, for reasons beyond
legal considerations, make an effort to find a loophole in the provisions set
out in Article 380 of the Code of Criminal Procedure that grants the trial judge
the discretionary power to deny a prisoner his release pursuant to conditions
explicitly set out in said text," which in its literal application,
"simply and directly turns not only the letter of the American Convention
on Human Rights but the very Code of Criminal Procedure into an
That the universal principle of innocence of the accused does not exist
in favor of Mario Eduardo Firmenich (Article 3, 2 of the Convention and 18 of
the Argentine Constitution).
That Mr. Firmenich "was never arrested or tried, or brought before
Argentine Courts and did appear, when required thereto;" that, as is stated
in the brief requesting his release the accused "knew 48 hours in advance
that he would be arrested in the city of Rio de Janeiro and that he did therein
remain," presumably that he will now avoid justice, furthermore, assuming
that "he would be condemned for the allegedly committed crimes," in
violation of the letter of the Convention and of the Constitution.
That, regrettably, the conclusion must be reached that the "law does
not exist, according to the particular criterion of the Argentine courts"
for the defendant, since "after February 13, 1984, three and a half years
have elapsed since Mario Eduardo FIRMENICH was arrested, without it being
possible to foresee the end of the proceedings against him. In only one of the cases brought against him has a sentence
of the first instance been handed down. This,
however, does not curtail the application of the principle of innocence in
favour of the accused, a guarantee, we repeat, of constitutional rank and
reflected in the Pact. All of the
above, with due consideration for the special characteristics, which did and
currently still affect the proceedings against Mario Eduardo FIRMENICH in which
the political aspects are more relevant than the legal ones."
That appeal, during which evidence can be submitted, are still pending.
This would require lengthy proceedings and since there is no assurance as
to the date on which a final decision could be given, there is not the slightest
possibility of Mario Firmenich recovering his freedom, pursuant to the
Convention and internal Argentine law, and that the length of the proceedings
could be estimated as six years, three of which have already elapsed, while the
accused has been detained all this time.
That the complexity of the case or the claim that the term specified in
subsection 6 or Article 379 of the Code of Criminal Procedure does not reflect
the norm in Article 7, para. 5 of the American Convention are excuses lacking
any legal justification. If could
be assumed, then, that if subsection 6 Article 379 does not refer to the
guarantee created by Article 7 of the Convention, that the situation would be
even more serious, since the San José Pact could not then be applied, all of
which could make it possible to hold "that the complexity of the case does
not justify the imprisonment of someone for more than three years, when the law
specifies that under no circumstances should two years be exceeded."
That the connection between the particular case of Firmenich and the
guarantee stipulated in the Constitution is obvious, since the minimum and
reasonable terms have been exceeded; otherwise, it would be necessary to
conclude that the letter of the Pact is dead and that the freedom of anyone
charged depended on the will of the judge or on the political interests at
stake. In this regard, the decision
rejecting the request for the release of Firmenich, of Federal Chamber of
Appeals of the Federal Capital (Cámara de Apelaciones en lo Federal), stated in
one of its whereas clauses:
does not modify the foregoing, when it invokes Article 7, subsection 5 of the
Pact of San José de Costa Rica, Act 23054, since it leaves to internal law the
decision as to whether a preventive detention is reasonable or not.
WHAT IS AT ISSUE, UNDER ARGENTINE LAW IS NOT A RIGHT BUT A POWER VESTED IN A
JUDGE AND WE HAVE SEEN, ON THE ONE HAND, THAT THE BALANCED INTERPLAY OF THE
PROVISIONS OF INTERNAL LAW AND THE PACT MAKE THE RELEASE OF MARIO EDUARDO
FIRMENICH MANDATORY. It would seem
that according to the particular views of the courts trying these cases that
Article 380 of the Code of Criminal Procedure, which is a procedural text, with
jurisdiction limited to the Federal Capital and to federal courts or to the
subjective will of the judge, can contradict the text of another, which has the
rank of a supreme law.
That in view of the above, the Chamber does not consider that Argentine
law establishes a right and, quite to the contrary, what is involved is a power
of a judge since " it would seem that according to the particular opinion
of the courts trying these cases Article 380 of the Code of Criminal Procedure,
which is a procedural text, with jurisdiction limited to the Federal Capital and
to federal courts or to the subjective will of the judge, can contradict the
text of another, which has the rank of a supreme law. According to this viewpoint, by way of example, it could be
stressed that in the Province of Buenos Aires, and under Act 10.358, November
18, 1985, the scope of the provision set out in Article 7, subsection 5 of the
Convention is defined when Article 449 indicates that "preventive
imprisonment shall be limited to two years after the date of arrest.
If a final decision has not been issued on that date, the prisoner shall
be released under bail set by the judge, regardless of the crime for which the
prisoner is charged." Firmenich
would have been released under said provision "as pertinent under the
letter and spirit of the Convention."
Similarly, emphasis would be placed, under said wording, on the existing
contradiction between legal texts of the same country regarding similar issues.
The only difference is that Articles 379 and 300 of the Code of Criminal
Procedure are federally applicable, whereas Article 449 is applied only within
the Province of Buenos Aires.
That, in addition to the above, it must be noted that subsection 6 of
Article 379 of the Code of Criminal Procedure was enacted under Act 23.054 on
March 1, 1984. Hence, the
simultaneous discussion of both rules in the legislature, to a certain extent,
can reflect the spirit that moved the legislators since it is not conceivable
that the principle set out in subsection 5 of Article 7 "of the Pact of San
José de Costa Rica would be applied sometime in the future, when both norms
have been simultaneously discussed in the Congress."
That, finally, the submission requests that the IAHRC discuss the case as
serious and urgent (Art. 48, 2 of the Convention), because every additional day
that Mario Firmenich remains in prison… is a new violation of the human rights
of the petitioner, since over a year and a half have elapsed since the day when
he should have been released.
Commission, in a note dated July 22, 1987, sent the Government of
Argentina complaint to as indicated by its Regulations (Article 34, subsections
3 and 5). Copy thereof was sent to
the Mission before the OAS on the selfsame date and the petitioner was advised
accordingly by letter dated July 22, 1987.
The complainant, in a brief delivered to the Commission on December 17,
1987, expanded the terms of his complaint by attaching supplementary public
documents regarding political statements made by the so-called Movimiento
Montoneros, of which Mr. Firmenich is a member.
The aforementioned attachments set out the support given by Argentine
persons and entities and from other parts of the world, whose names and
particulars are listed alongside each of them.
10. The Commission
transmitted this additional information to the Argentine government on December
11. The Argentine
government answered on February 25, 1988 (VS. 13).
There follows a summary thereof:
That the Argentine government shares the views of the petitioner in that
Article 1 of the Convention implies an obligation to act on the part of the
interested State since it imposes the obligation or generally respecting the
rights listed in the Convention;
That the same can be held as regards Article 2, since a general
obligation to act exists when the internal law of an interested State does not
include provisions which provide for the application of the rights an guarantees
set out in the Convention, because in the absence thereof, the State should
adopt those se out therein. The
above, insofar as the Argentine stated is concerned, does not imply and
obligation to act since the rights and freedoms allegedly violated are
duly guaranteed by the internal laws;
That the complaint is limited to three types of violations, that is:
i) the right to personal freedom and, particularly, to Article 7,
subsection 5 of the Convention; ii) the principle of innocence of Article 8,
subsection 2 of the Convention; and, iii) the principle of equality
before the law (Article 24 of the Convention), the analysis by the
petitioner being limited to the violation of personal freedom (Article 7, 5);
That, as regards Article 7, 5 (personal freedom) the facts are, as
That as regards the petitioner -under Article 379, subsection 6 of the
Code of Criminal Procedure (hereinafter the Code), which corresponds to the
guarantee in Article 7, subsection 5 of the Convention, as related to Article
701 of the selfsame Code, two years must be computed after the date of arrest of
Mr. Mario Firmenich, which would automatically lead to the release of the
That the interpretation of a provision -based on arithmetical
considerations- does not agree with the currently applicable law (including
international law) which has indicated that pursuant to legal hermeneutics other
criteria, in addition to the above, must also be taken into account, such as judicial
discretion in judging a case and the concept of reasonable time
according to the Convention thereby demanding a prior consideration of these two
concepts or criteria;
That, in this case, the concept of the alleged violation of the right of
personal freedom would consist of the fact that two years after February 13,
1984 (date on which Firmenich was arrested in Rio de Janeiro, Brazil) the
judicial authorities with jurisdiction over the case should have granted the
request for release, an opinion which would limit the applicable law to a mere
computation, overlooking the consideration of the situations involved and the
particular circumstances of each case;
That the definitions of criminal acts describe certain conducts and the
aggravating or mitigating factors related to criminal responsibility, which must
be taken into account for a proper consideration of each case, something the
"applicant attempts to ignore when he holds that a refusal to release him
under Article 380 of the Code reflects the arbitrariness of the judge or his
subjective will," since the referenced article cannot be partially
understood and must be considered as the natural extension of Article 379 of the
Code which, in fact, sets out the authority of the trial judge to approve a
release if the legal requirements set out therein are met, whereby the lawgiver
appeals to the "sound judgement" of the judge.
This power -not obligation- of the judge to release a prisoner is
expressly defined or limited by Article 380 of the Code of Criminal Procedure;
That the above implies that Article 380 of the Code "confirms the
discretionary nature of a decree ordering that the prisoner be released as
defined according to the according of Article 379;"
That it is absolutely unreasonable to believe that provisions in Article
379, subsection 6 of the Code are automatically applied, that is, after the sole
passage of time, since if this were the case "all that would be required
would be that in difficult cases the defense raise several issues according to
law and thereby manage to exceed the time limitations, without enabling the
courts to render a verdict in the case;"
That even after admitting, for the sake of argument, that the remission
of Article 379, subsection 6 of Article 701 of the Code "refers only to the
time mentioned in the latter (Article)," it is clear that the obstacle to
Firmenich's release is not the manner of computing time of detention but certain
constraining factors, assessed in Article 380 of the Code;
That on the other hand it cannot be disputed, and this is the result of
the congressional reference to the scope of Article 379 in connection with 701
of the Code, quoted by the petitioner, that the clarification of these
provisions in the Senate (which stated that the period could never exceed two
years) was designed to establish the real meaning of the remission mentioned in
Article 701, and that the petitioner overlooks the fact that the aforesaid
clarification also brought into play another aspect when "globally
reviewing a petition for release, that is, the existence of circumstances which
would make it possible to reasonable assume that the accused will attempt to
evade justice if released;"
That the applicability of Article 380 to the hypothesis stated in
subsection 6 of Article 379 is clearly evident according to the very text of
Article 380 which, in its second paragraph indicates "…the provisions in
this article shall not limit the application of subsections 2, 3, 4, and 5 of
the preceding article," that is, that it can limit the application of
subsections 1 and 6 of Article 379;
That (the applicant holds that) such a power granted to a trial judge is
an arbitrariness "equivalent to disqualifying in the same terms of criminal
law in modern States …since in all of them is the judge, and the judge only,
who is under the obligation and has the power to administer justice."
To hold the opposite view, that is that the accused must be automatically
released "is equivalent to denying the power to judge, denaturing the
actions of justice which would, thereby, be more likely to be biased;"
That the IACHR has repeatedly set out at length its views on the role of
the judge in connection with human rights.
As regards this issued, the Government repeats what is stated in the Seventh
Report on the Situation of Human Rights in Cuba (OAS/Ser.L/V/II. 61, doc.
29, Rev. 1, October 1º, 1983, pp. 67-68), concluding that, according thereto,
it would be up to the prudent discretion of the judge to assess the
"feasibility and the legality of granting a release within the parameters
set out by the law applicable in the country;"
That a second particularly relevant issue involved in this case is the
concept of "reasonable length of time," mentioned in Article 7,
subsection 5 of the Convention, since neither the Pact of San José nor the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(Rome, 1950), whose connection to the Pact is, undoubtedly explicit in this
sense, refer to it; therefore, to clarify this issued other criteria would have
to be applied, according to the general rule on the interpretation of treaties
which, set out in Article 31 of the Vienna Convention of the Law of Treaties
refers to a "a practice generally accepted as law," an international
…norm, and as a result of which "a treaty should be interpreted in good
faith, according to the usual meaning which must be attributed to the terms of a
treaty in the context thereof, bearing in mind their object and purpose,"
as set out in the referenced norm;
That according to the above, Article 7, 5 of the Convention, which refers
to "reasonable length of time," is applicable only to personas
"arrested or held," imposing on the States parties the obligation to
be diligent in their proceedings to avoid the extension thereof beyond what is
That precedents in the Inter-American System (based on the Pact of San
José) are not abundant in this regard since the Inter-American Court has not
yet acted with regard to Article 7, 5 of the Convention and the IACHR has
done so only with regard to the American Declaration and within contexts that
are different from those of this case, thereby making it necessary to turn to
concepts in the European System (Article 5, 3 of the Rome Convention),
That the accused must be considered innocent and the purpose of the
provision analyzed is basically that the prisoner be released when to continue
to hold him ceases to be reasonable;
That the European Court, on November 10, 1969, decided accordingly in the
That the foregoing makes it necessary to define the concept
"reasonable length of time," regarding which the adequate means and
purposes which the judge has to weigh must also be considered.
Therefore, the "reasonableness of a court order or of length of time
must be weighed within its own and specific context, that is, there are no
general universally valid criteria and what is involved is something that is
legally known as a question of fact." Thus, the Stated party is not bound
to set a valid time for all cases, independently of the circumstances, because
each case is a "microcosm" with its own time, objective circumstances,
behavior of the accused and that of his attorneys, etc.
This has been the criterion adopted by the European Court of Human Rights
when it states that "… it must be acknowledged that it is impossible to
translate this concept, in every case into a fixed number of days, weeks, months
or years or to modify their number according to the seriousness of the
violation" (STOGMULLER Case), ibid., pp. 155-156).
That, accordingly, Argentine law has acknowledged the two year standard
(Article 379, 6 in relation to Article 380 of the Code of Criminal Procedure) as
a basis for a "reasonable, length of time," therefore, two years could
be considered as reasonable, after which a judge could take into consideration a
request for release without thereby being in any manner forced to forego the
objective consideration of the characteristics of the event and the personal
characteristics of the accused or being under the obligation to release the
prisoner even if there exists doubt about evading justice.
12. After this, the
answer of the Argentine government proceeds to analyze to questions, that is:
the personal freedom of the petitioner and the alleged violation
of equality under the law.
to the first issue, the Government holds -according to the doctrine of the IACHR-
that since "reasonable length of time" is an abstract term it must be
considered in the light of certain criteria, factors or elements
of the specific case being considered, such as:
The first criterion is the actual duration of imprisonment:
the complainant holds that his detention must be computed (in connection
with the two year term being invoked) since the date on which he was arrested by
the proper authorities in Rio de Janeiro, on February 13, 1984.
comment regarding this particular point is that the prisoner was turned over to
Argentine authorities "only on October 20 of that selfsame year" and,
therefore, it should be understood that this last date is the one to be
considered under Article 7, 5 of the Convention because:
The time required for an extradition is not directly related to the activity of
the requesting State, since the authorities to whom a request is
submitted who must decide thereon.
The second factor is the duration of preventive detention in relation to
the nature of the acts which gave origin to the trial.
petitioner was summoned by two different judges for two separate crimes and,
therefore, two different proceedings are being conducted: one for homicide
with two aggravating circumstances and attempted homicide with two
aggravating circumstances with a petition for life imprisonment.
This case is being tried in a Federal court, in Buenos Aires and, the
other, for doubly aggravated homicide, kidnapping and extortion and a
request has been filed for life imprisonment and accessory penalties leading to
indeterminate imprisonment. This
last case is being tried in the Federal Court in San Martín.
Therefore, it is understood that "in view of the penalties which
could be imposed the duration of procedural detention does not deprive said
detention of its protective nature."
The third element is the material, moral or other effect of detention
when the normal consequences are exceeded.
Argentine government is of the opinion that the consequences are the same as in
the case of other prisoners who have not been released.
The complainant is being held in the appropriate facilities, that is, he
can receive visitors, engage is sports, read, study and takes exams according to
the curriculum of the career he has chosen.
As to the political injunction affecting his precandidacy for a seat in
Congress, it must be remembered that "Article 3 of the National Electoral
Code excludes such a possibility …"
It is not a question of someone being politically proscribed but of
strict compliance with the letter of the law.
A fourth criterion would be to observe the behavior of the accused or
failure to cooperate during the trial, since it is believed that in both cases
the petitioner and his attorneys have contributed to the lengthening of the
The fifth factor would have to be judged according to the difficulties
faced by the investigation of the case which, because of the characteristics
of the alleged crimes have resulted in extensive investigations in each of them,
as regards oral testimony and documentary evidence, both in Argentina and
abroad. In connection with the
first case (Case in Federal Court -San Martín) a decision was handed down in
the first instance in May of 1987, which was appealed, a remedy that is still
pending. The second case is
also pending, since the defense has asked to submit evidence.
Another consideration is the manner in which the investigation has been
conducted: the proceedings have
followed the Code of Criminal Procedure, applicable to any defendant within the
national jurisdiction, rules of which existed before the events, applied by
judges vested with appropriate powers and with absolute respect for the right to
defense; that is, the three stages of due process have been completed:
investigation, dispute, and evidence according to
the rules of evidence, said evidence being weighed according to rules applicable
thereto and, hence, without any margin or possibility for the judge to consider
it according to his personal opinions.
Finally, the seventh factor is the manner in which judicial
authorities have acted since they "displayed an intense and unceasing
investigatory zeal which made possible the filing of charges twelve months after
the prisoner had been handed over to Argentine authorities."
note of the Argentine government then adds that the joint review of the seven
criteria defined by the IACHR in this case leads to the conclusion that the
period of detention of the petitioner has not exceeded the limits of a
"reasonable length of time" mentioned in Article 7, 5 of the
other aspects must be also considered when examining Case 10.037, according to
opinions of the IACHR on the concept of "reasonable length of time"
provided for in Article 5, 3 of the European Convention which has held
that to decide such an issue the opinions of the judicial authorities handling a
case must be taken into account when deciding petitions for the release of a
prisoner, together with the undisputed facts mentioned by the petitioner in his
this connection, the petitioner has invoked internal rules of procedure (Article
379, subsection 6 of the Code of Criminal Procedure).
10/3/86 of the Federal Judge in San Martín refusing the request states:
I agree with the petitioners that the accused has been held for over two years,
in this particular case such a circumstance is not enough, by itself, reason
enough to immediately release the prisoner…application of subsection 6 of
Article 379 of the Code of Criminal Procedure is not automatic and must be
harmoniously appraised with the immediately foreseen exception set out in
procedural rules indicates that in the assumption that the referenced Article
379, subsection 6 is applicable, the Judge must make sure whether the nature of
the facts and the personal characteristics of the accused, objectively weighed,
make it possible to assume with reasons, that the accused will attempt to evade
such an assessment it is, in my opinion, absolutely illegal to grant the
above, without prejudice to the objective seriousness of the accusations made
against Firmenich in the light of their definition (it should be remembered that
he has been accused of doubly aggravated homicide and kidnapping for extortion),
since other factors to be taken into account do not contribute to a favorable
prognosis. In fact, a joint
analysis of the latter and the defendant's personality cannot fail to lead to
the conclusion that the danger of frustrating the investigation of the truth and
serving of a sentence which might be imposed on the accused can only be avoided
by extending the latter's preventive imprisonment.
said effect, the judge took into consideration the prosecuting attorney's
request for life imprisonment; the defendant's permanent obstruction of the
trial, his lack of repentance and dangerousness.
decree turning down such a request was confirmed in the second instance on
November 11, 1986, and in view of the decision of the Criminal Chamber of the
Court of Appeals of La Plat, an extraordinary remedy was filed with the Supreme
Court of Justice, which declared such a remedy not acceptable on January 27,
Resolution dated 10/3/86, of the National Federal Criminal Court of the First
Instance Nº 5 of the Federal Capital, in one of its whereas clauses, indicates:
"The undersigned must also disagree with the construction of the
application of Article 380 of the Code of Criminal Procedure by the petitioners.
This, because the hypothesis on which Firmenich bases his statement, that
he could have avoided Argentine justice when he was in Brazilian territory had
he so wished, cannot be verified. Further
thereto, full and complete proceedings for extradition, although a right of the
person being extradited, are also evidence of his unwillingness to stand
trial," followed by: "That
the reasonable interpretation of Article 7, subsection 5 of the American
Convention on Human Rights leads to the statement that an opinion on the
duration of preventive custody must also be related to the circumstances of the
case. This conclusion clearly
follows the jurisprudence of the European Court of Human Rights with regard to
the Convention applicable in this continent, whose Article 5, subsection 3 is
worded almost identically to the American provision."
above resolution was confirmed by the Federal Court of Appeals, Chamber I; when
an appeal was taken to the Supreme Court of Justice of the Nation, it was turned
down on July 28, 1987.
to the alleged violation of the right to equality before the law, the
Argentine government rejects this allegation by stating that the decisions
rejecting petitions for release have been based on the same reasoning applied to
other cases decided after the enactment of Article 379, subsection 6 of the Code
of Criminal Procedure, while also rejecting the notion that if Article 449 of
the Code of Criminal Procedure of the Province of Buenos Aires were to be
applied the defendant would already be free, since the referenced article has
been amended "in order to exclude any possible automatic application of
13. The Commission,
in a letter dated March 16, 1988, conveyed to the petitioner the text of the
note dated February 25, 1988, requesting comments or observations considered
14. The legal
representatives of the defendant submitted comments in writing on May 5, 1988.
There follows a summary thereof:
That all internal remedies have been filed in this case.
That according to the Argentine government's answer "it was
expressly acknowledged that the 2 year term mentioned in subsection 6 of Article
379 of the Code of Criminal Procedure involves the legal application of a
'reasonable period of time' to which Article 7:5 of the Pact of San José
That in spite of the above an effort is made to condition it according to
provisions in Article 380 of the Code, whereunder the judge may grant such a
benefit according to his particular views, an issue that has been duly examined
in the accusation.
That circumstances or factors claimed by the Government to be elements
required to determine whether a petition for release of the prisoner can be
accepted or not is based on the possibility that the accused might avoid
justice, which in the Firmenich case should be favorably viewed since the latter
has offered all guarantees required to ensure his appearance in court, including
the possibility of house arrest under conditions to be determined by the courts.
That the following factors, which define the so-called "reasonable
length of time", should be considered:
the detention should be computed since 2/12/84 and not since October of
that same year, since that was the date on which extradition proceedings were
begun and as a result thereof the prisoner has been in jail 4 years without a
final judgment being handed down.
That in connection with the penalty which could be imposed according to
the alleged crimes should, it must be pointed out, be considered a factor when
weighing the possibility of releasing the prisoner, that consideration must be
given to the Stogmuller Case (1969) reviewed by the European Court which
when referring to Article 5:3 of the Conventions states that "… Article
5:3 is viewed as an independent provision which produces its own effects,
regardless of the circumstances under which events which led to the arrest or
the circumstances affecting the duration of the trial occurred…"
That it is not true that the defendant or his attorneys have used
dilatory or abstentionist tactics and which, furthermore, that this is not an
issue of major significance in the light of the jurisprudence derived from the
European Court in the Neumeister Case (1968).
That is seems necessary to advise the Commission, as follows:
subsection 6 introduces into the bill sent by the Executive Branch a new
assumption for the release of prisoner that fully repairs an injustice which has
existed to date. The rule in
Article 701 sets two years as the maximum for criminal proceedings.
When the proceedings exceeded said limit, the accused had, until now, to
bear such a irregular situation and remain under arrest.
With this inclusion the individuals who have the misfortune of being
tried will no longer have to suffer the law's delay and, under said assumption,
their release could be ordered, above and beyond any consideration in the other
provisions of the law.
15. The Commission,
in a note dated May 18, 1988, conveyed to the Argentine government the
16. The Argentine
government, in a note dated July 6, 1988, commented on the petitioner's
document, stating that as regards the full use of all internal remedies,
it has been fully admitted in the case under consideration that all internal
remedies have been exhausted, a matter on which a coincidence of view had
already been expressed by this Government and the petitioner in connection with
this motion for the prisoner's release.
to provisions in Article 1 of the Convention,
an essential feature of human rights is the fact that they are not absolute but,
instead, subject to regulations; to reasonable regulations, required by a
democratic society for the protection of national security and the safety or
public order, or to protect public health and morals or the rights and freedoms
to references to reasonable length of time,
that in view of the laws applicable in Argentina, the reasonable period
mentioned in the motion for release is related to Article 379, subsection 6 in
connection with Article 380, and the decision on the individual case -that is,
the rule applicable to the case under review- will always depend on the
criterion of the judge. However,
what cannot be derived therefrom -as the petitioner seems to do- is that the
judge can do whatever the wishes. On
the contrary, the rules indicate the channels to be followed by the judge's
reasoning, that is: the objective
consideration of the features of the case, the personal characteristics of the
accused. In addition thereto, it
is therefore advisable to repeat what was stated in item 4.7 of the first
Argentine answer, in that:
hold that granting the judge a power such as this one is equivalent to a legally
consacrated arbitrariness is equivalent to using the same expressions to judge
all the criminal law of all modern States -regardless of the legal system which
they apply-, since in all of them the judge, and only the judge, has the
obligation and power to administer justice."
to the reasonableness of the period, it is said that the correct
interpretation of the situation referred to herein indicates that in the case of
two year term the judge could reject a motion for the prisoner's release based
on the provisions in Article 380. This does not lead, as attorney BEATTI seems
to imply, to the view that the period is unreasonable but, on the contrary, it
is the existence of the extremes indicated in Article 380 which make the
granting of such a motion unreasonable and an extension thereof reasonable.
Furthermore, it is said:
this regard, the European Court of Human Rights has stated, when referring to
Article 5.3 of the Rome Convention:
Tribunal is also of the opinion that to decide, I a particular case, whether the
detention of the accused does not exceed the limit of what is reasonable, the
national judicial authorities must investigate all circumstances whose nature
could aid I accepting or rejecting the idea that public interest could justify
the repeal of the rule on personal freedom (NEUMEISTER Case, decision dated June
27, 1968, TEDH-5.p.83. Legal grounds # 5).
evident, the criterion on law applicable in the country coincides with the
position adopted by the Strasbourg Court.
to the principle of innocence,
the fact that a trial has been held with all the guarantees provided for in the
law applicable in the country -including, obviously- the American Convention,
and all motions based thereon, cannot be interpreted as a disregard for, or
limitation imposed on the effectiveness of the principle of innocence.
Consequently, it can be stated that the principle of innocence would be
violated if the period were unreasonable which, in this case, does not reach
such an extreme.
the principle of equality is mentioned, the position is, as previously
stated in the Argentine answer, that the Government is of the opinion that the
aforesaid principle has not been violated, stressing that it must not be
construed in arithmetical terms but, instead, and to the contrary, it shares the
duty of giving equal treatment and, hence, equal protection to those who find
themselves in the same circumstances and that this is the interpretation
accepted by all the laws applicable in the country, including the American
referring to the seriousness and urgency of the case, the reference is
that within the context of the Inter-American System of Protection based on the
Convention there are "serious and urgent cases" and "extremely
serious and urgent cases."
first conclusion on this leads this Government to hold that there is no doubt
that this particular case is not one of the "extremely serious and urgent
cases," for public and evident reasons.
Neither is this a serious and urgent case, since the Commission -which
is, in the final instance, the body called upon to assess such a condition- has
not acted in the manner stipulated in the Convention for cases of this type.
the following statements are made, among others, under the heading "Seven
the Government has made manifest is the direct relationship between the notion
of reasonable period of time and judicial indolence; that is, when the latter
has been certified, an extension of detention becomes unreasonable.
with the above, this Government has held that the period between the arrest
of FIRMENICH in Rio de Janeiro on February 13, 1984 and the date on which he was
turned over to Argentine authorities on October 20 of said year cannot be
considered for purposes related to judicial activity for the obvious reason
that the accused was not yet before the court.
Therefore, if no action was taken during that time in connection with the
trial it was because what was required at that stage were certain procedures and
formalities during which the accused's right to defense must be guaranteed.
Consequently, the Argentine authorities can only proceed after the
accused is within their jurisdiction.
the national judicial authorities begin to act only after October 20, 1984.
However, the above does not imply -as has been held- that for sentencing
purposes the date to be considered is February 13, 1984.
On the contrary, emphasizing what has already been indicated, in
extremely complex extradition proceedings the absurd extreme could be reached in
which the prisoner might have to be released before the trial begins.
to the status of the accused Mario Eduardo FIRMENICH, it must be pointed out
that he has been sentenced in the first instance in May 1987, in one of the two
cases and that said sentence was appealed by the defense.
the case being tried by the Federal Judiciary in the Federal Capital, sentence
was passed in June of 1988. In both
cases the judicial decision regarding life imprisonment has been limited to
thirty years, under the agreements entered into with the Republic of Brazil.
to the "duration of preventive imprisonment in connection with the nature
of the violation" the paragraph of the STOGMULLER decision quoted by the
petitioner is the same one mentioned in paragraph 4.12 of the Argentine answer
and as indicated therein, the issue is to define the reasonable length of time.
reasonableness of the period cannot be translated into a fixed number of days,
months or years (c.f. referenced STOGMULLER case, p. 155-156), since it is
dependent on other elements, which the judge must consider.
In order to set the limits of the prudent discretion of the Judge and to
prevent "judicial indolence" the legal system provides the Judge with
certain criteria for weighing the circumstances.
In the case under review, said criteria are derived from Article 380 of
the Code of Criminal Procedure, which sets the rules for interpreting Art. 379,
considering standards related to the "difficulties faced when investigating
the case," the comments repeat statements by Judge CREMONA, which this
fact, "the justified duration of an investigation cannot be necessarily (as
sometimes seems to be assumed) and automatically extended to include the
justified duration of preventive confinement." However, the certified complexity of an investigation can
justifiably result in an extension of preventive confinement.
In this sense, the decision of the European Tribunal of June 27, 1968, in
connection with the WEMHOFF case states>
must not lose sight of the fact that although an accused and detained prisoner
is entitled to an earlier scheduling of his case, the latter must not overlook
efforts made by the Magistrates to cast a light on the charges and to offer both
to the defense and the prosecution all the assistance required to show their
evidence and to stated their reasons and not to judge until after having
considered the existence of violations and the penalty (p. 59, Legal grounds,
to an alleged failure to conduct proceedings in connection with the brief in the
Federal Capital, between December 30, 1985, and August 15, 1986, it should be
pointed out that not only were mere formalities completed but also specific
Documents are requested from the Federal Court Nº 6, Secretariat Nº 16, on
December 30, 1985.
January, 1986: judicial holiday.
April 7, 1986: various proceedings
conducted in the interior (Italian newspapers).
April 23, 1986: testimony given by
Commissioner ALVAREZ, Interpol.
May 5, 1986: the Prosecutor files
August 13, 1986: the Prosecutor
requests additional extension of the investigation;
the courts activities during said period. And
all of the above, without prejudice to setting out at length everything stated
in item 126.96.36.199 of the Argentine answer.
to the extensions granted which are considered to have covered "twenty four
days in all," this Government wishes to point out to the Commission that
FIRMENICH's defense waited from October 21 (when notice was given on the
accusation filed on the 2nd. Day of the same month) until March 16,
1987, that is, almost five months and not twenty four days, as is claimed,
before making an appearance in court. That
is the time it took to request the file (October 31, 1986), to request the
prisoner's release (to which end the Chamber requests the file on November 10,
1986), the four extensions requested (one of them prior to a submission for the
prisoner's release), and the Court holiday (January 1987, which the defense also
computed as a holiday).
summary, as reported in item 188.8.131.52 and set out herein, the course followed by
the file is:
October 2, 1986 -Accusation.
October 6, 1986 -The case is divided and the courts orders that a single
domicile be defined.
October 16, 1986 -The defense requests photocopies that are certified on the
October 26, 1986 -Notice given to the defense.
October 31, 1986 -Delivery of the file.
November 4, 1986 -First extension requested.
November 10, 1986 -The Chamber requests the file to decide on a petition for
November 11, 1986 -The Court requests that the file be remanded to the defense.
December 26, 1986 -File returned to the Chamber and additional notice given.
January 1987 -Court holiday.
March 16, 1987 -Notice answered (four (4) extensions granted to date).
March 25, 1987 -Court ready to receive evidence.
March 15, 1987 -Prosecution's evidence submitted and entered in the record.
February 29, 1988 -Defense completes submission of evidence.
April 29, 1988 -Extension based on Pleadings by the Defense.
May 6, 1988 -The Prosecutor argues the case.
June 14, 1988 -Prisoner is sentenced.
evidence by the above, this case was plagued by difficulties during the
investigation, not related to the activities of the magistrates involved.
Said difficulties resulted not only from the complexity of the cases
themselves but from the positive decision of FIRMENICH's attorneys who,
undoubtedly to engage in a better defense, requested several extensions whose
legitimacy was duly weighed by the judges when granting them and which cannot be
validly used to accuse the authorities of judicial procrastination.
what the preceding paragraph attempts to show is that this government has not
only considered the criteria indicated by the European Commission but also the
standards set by the Court of Strasbourg, all of which lead to the same
conclusion: that the preventive
detention of FIRMENICH does not violate the Convention since it has not been
proved that the term was unreasonable.
to the reasonableness of the time, from accusation to sentencing, the statement
is, as set out in the prior answer, that the Government submit to the
Inter-American Commission, in connection with the case being tried by Federal
Judiciary with venue in San Martín, that a verdict of guilt was handed down in
May, 1987; that in the case tried in federal courts of the Federal Capital, the
accusation was filed in October of 1986 and a verdict has already been entered.
brief, Mario Eduardo FIRMENICH has currently been tried and sentenced in the
first instance as a result of sentences handed down by the Federal Judges in the
Federal Capital and in San Martín to life imprisonment and accessory penalties,
limited to thirty years under an extradition agreement.
Similarly, that when his brief was submitted to the Commission, on
July 21, 1987, he had already been sentenced in connection with the case
related to the kidnapping and ransom of the BORN brothers and the homicides of
Alberto BOSCH and Juan Carlos PEREZ according to a sentence passed in May of
17. The Commission,
in addition to written procedures listed above, held hearings, with the
participation of representatives of both the claimant and the Argentine
government. Said hearings were held
on September 9, 1988 (session 994ª), during the 74th period.
The parties had an opportunity to make their views known at length,
during which pleadings they summarily reiterated the statements already made to
review of Case 10.037 has led the Commission to draw the following conclusions:
First. The petition meets all the formal requirements for a hearing
set out in Article 46, 1 (b, c and d) of the
Convention, since it has been submitted within six months after the date on
which the competent judicial authorities turned down the requests for release
filed by Mr. Eduardo Firmenich and said decisions were confirmed by the Supreme
Court on January 27, 1987, and July 28, 1988, the definitive judicial decisions
on said motions; the issue under review is not being considered before any other
international proceedings and meets the requirements of name, nationality,
profession, domicile, and signature of the claimant and a description of the
facts denounced and causa pretendi.
Second. The claimant, according to the record, has exhausted all
internal remedies, understood as those related to the motions submitted to the
national judicial authorities or, in other words, the request for release of Mr.
Firmenich while proceedings instituted against him were completed, even though
the aforesaid motions did not have a direct bearing on the fundamental issue of
said cases. The Commission
understands that when the Supreme Court turned down the remedies against the
decisions, which rejected the requests for release submitted to the courts of
first instance and appeals, no other internal actions were available to the
petitioner and therefore the petitioner could turn to the international body.
it should also be borne in mind that requests for the release of Mr. Firmenich
must be viewed, from the standpoint of national law, as motions in trials
against said person, without prejudice to consideration of whether denials of
release imply or could imply disguised penalties since they deprive the accused
of personal liberty before sentencing, even if the first instance.
The foregoing is important because, as far as the IACHR is concerned, the
claim is based on the alleged violation of the fundamental guarantee of the
right to personal freedom, stipulated in the text of Article 7, subsection 5 of
Third. That three issues are at stake in the complaint:
National law and the guarantee set out in Article 7, 5 of the Convention;
jurisdiction of the judge when weighing the causes listed in Article 379 of the
Argentine Code of Criminal Procedure;
iii. The scope of
Article 379, 6 as related to Article 701 of the selfsame Code and the concept of
"reasonable period of time" to which the Convention refers (Article 7,
Fourth. As to the second issued, that is whether the trial judge is
empowered to weigh the grounds listed in Article 380 of the Code of Criminal
Procedure, in order to release or not a prisoner, the Commission takes it that
the prudent judgment of the judgment of the judge when weighing "the
characteristics of the case" and the "personal characteristics of the
accused" in order to determine whether there are reasonable grounds for
believing that the "accused will not attempt to evade justice" is not per
se a violation of Article 7, subsection 5 of the Convention, in that said
power could lend itself to the application "of particular criteria of the
judge called upon to apply the law," as mentioned by the claimant in his
original complaint (p. 2).
power, vested under Article 380, is in fact an exception to what has been
granted to the judge by Article 376, which grant him broad authority to order
the release of a prisoner when the grounds set out in subsections 1 to 6 are
met. It could be said, as the Argentine Government points out that
"When vesting this power, the legislator is appealing to the 'sound
judgement' of the judge". In
other words, what is involved is a regulated power, not an obligation and hence,
the release of the prisoner is something that is within the discretionary powers
of the judge.
this point the Commission holds with what has been expressed by the Public
Prosecutor in Case Nº 26.094 against Firmenich and in connection with the
latter's request for release, in that "there always existed a rule equal or
similar to the one set out in Article 380, as the last tool provided by the law
to judges to decide cases in which the strict application of ritual rules would
lead to flagrant injustice or mockery of the law" and they add:
"In fact, that an individual accused of the most serious crimes and
for which life imprisonment has been requested together with an additional
penalty of indeterminate imprisonment, should be entitled to enjoy freedom
slightly after two years by using legal measures of sibylline combination, does
not resist the most elementary logical and legal analysis."
Commission believes that it is precisely the prudent judgment of the court, when
considering the legal requirements that set the standards for granting or
denying the release, what evidences the independence of the judiciary to which
the Commission has positively referred to on several occasions as the
indispensable requirement for the proper administration of justice.
Further, in this case, the conditions mentioned in number 1 of Article
379 are adverse to the prisoner, because the penalties which could be imposed
and for which his arrest was ordered, exceed 8 years of imprisonment and would
not correspond, as in this instance they do not correspond, to a conditional
serving of time and for which reason the release could not be ordered.
Commission also shares (moreover, in this regard) the interpretations criteria
of the Argentine scholar, Mr. Ledesma, mentioned above, in that "the
personal characteristics of the defendant" and the "characteristics of
the facts" (punishable) must be jointly weighed and, under the text of
Article 380 of the Code of Criminal Procedure, since that is the only manner in
which the objectivity required to decide whether a release can be ordered is to
be achieved. The Commission also
shares the interpretative criteria applied by Mr. Ledesma since to adequately
consider the conditions stipulated in Article 380 the judge must also bear in
mind the "motives, the behavior prior to and after the events, the
procedural behavior of the defendant during the trial against him for said
events and any other circumstance directly or indirectly related to the event or
events for which he is charged."
Commission does not overlook the fact that the complainant was accused of most
serious crimes under aggravating circumstances such as the alleged execution of
persons by a gang or by two or more material perpetrators, in the alleged
classification of kidnapping for ransom, whose presumed violation of the human
rights of the victims would be superfluous to stress; without having to examine
the alleged motives or purposes of said crimes against life and property of the
victims, all of which -as has been previously indicated- negatively influence
consideration of the status of the accused and, consequently, the refusal being
Sixth. The reasoning of the complainant that refusal to release the
prisoner is a way or method of political proscription or an indirect refusal or
constraint of the political rights of same is not admissible, bearing in mind
the possibility of his election to parliament.
is not -although obvious must be stated- among the grounds stipulated in the
law, that is, the Code of Criminal Procedure (Articles 379 and 380) as law
applicable to the case nor is it included in the Convention.
to the above it must be stressed that these grounds, not defined in the law, are
not admissible, as others of the same nature.
Thus, for example, it could not be held that following a sentence that
legally deprives the accused of freedom, the right of residency and movement is
violated or the right to establish a family, etc.
Similar views would make it possible for many or almost anyone held in
jails or other facilities to obtain their freedom by turning to pretexts or
grounds that go far beyond the limits of the pertinent laws. This portion of the
petition lacks, in fact, any legal basis or grounds and is, therefore,
disregarded without additional comments.
Seventh. The analysis of the third item (3, iii), related to the scope
of Article 379, 6 of the Code of Criminal Procedure, together with Article 701
of said Code and the concept of "reasonable length of time" mentioned
in Article 7, 5 of the Convention, is of the essence of the complaint.
The guarantee mentioned in the referenced article of the Convention would
have been infringed because of "judicial procrastination" during
proceedings against Firmenich, since the abovementioned term had been exceeded.
summary, the petitioner states that since more than three and a half years have
elapsed since the arrest of Mario Eduardo Firmenich, the period mentioned in
Article 379, 6 of the Code of Criminal Procedure as well as the one mentioned in
Article 701 of the same Code has been exceeded by far, said periods consacrating
in internal law the "reasonable length of time" mentioned in the
Convention within which a person is entitled to be tried or "to be set
free, without prejudice to continuing trial."
The claimant states, in keeping with the above, that Article 379, 6 is
the instrument ("inclusion") of Article 7, subsection 7 of the
Convention in the Argentine legal system, since if this were not the case, the
foregoing would represent a void that prevents the application of the guarantee
in Article 7, subsection 5 and would also be a violation of the Convention by
Argentina in view of provisions in Articles 1 and 2 thereof.
Argentine Government, also in summary, rejects the criterion of the complainant,
commenting that "Argentine law must be construed as having adopted the two
year term, mentioned in Article 379, subsection 6 in connection with Article
380, as one of the foundations of a "reasonable length of time" and
that, "therefore, two years could be considered a reasonable period, after
which the judge can consider a request for release but which is not, at all,
imposed on the judge without consideration for the personal characteristics of
the accused, nor should said period be computed as if it consisted of calendar
days, overlooking the behavior of the parties and its effect on the greater or
lesser speed of the proceedings."
mentioned when considering the first question, the Commission understands that
in connection with this assumption, Argentine law does not suffer from an
absence of law or legal "gap" in this case and that Article 379,
subsection 6 of the Code of Criminal Procedure is a guarantee which corresponds
to Article 7, subsection 5 of the Convention.
Commission believes that subsection 6 of Article 379 is supplemented and
"moderated" by Article 380 of the said Code, so that the definition of
a "reasonable length of time" in Argentine's internal law is the
result in each case of the harmonious consideration of these two
provisions, leaving said consideration to the judge's criterion, since he must
decide based on the parameters specifically determined by law for their joint
weighing. As the Argentine
Government states: "…the
norm indicates the channels to be followed by the judge's criterion, that is:
the objective assessment of the characteristics of the event and the
personal characteristics of the accused."
The judge fulfill a natural role entrusted to him:
administering justice with the means expressly provided thereto by law.
important concepts are derived from the above in connection with the problem of
a "reasonable length of time": first,
that it is not possible to define this period in abstracto, but, instead,
that is shall be defined in each case after the circumstances mentioned in
Article 380 have been considered and weighed.
The Commission, in connection with these comments, agrees with the
opinion that the referenced State party is "not bound (by the Convention)
to fix a valid period for all cases, independently from the circumstances."
This viewpoint is also shared by the European Court; second,
releasing prisoners under conditions such as those in which Mario Eduardo
Firmenich finds himself cannot be done based on a simple chronological
consideration of years, months, and days. This
has also been made explicit by the European Court in the infra mentioned case,
since the concept of "reasonable period" is left to the consideration
of "the seriousness of the violation," when determining whether the
detention has ceased to be reasonable.
pronouncement of the European Court coincides, in this case, with what has been
stated by the Court in San Martín, when deciding on the remedies submitted by
counsel for Mr. Firmenich and stating:
norm only requires that the person charged be tried within a reasonable period
and, if not, be released on bail. The
"amount" of reasonable length of time does not have to be set as being
two years, as is claimed without additional basis, since if that period is
appropriate for a simple and easily investigated case is might no be, when
related to another, such as this one, whose complexity, scope and difficulties
impose a longer period for it to expire. This
last reasoning has been reflected by legislation in the very Article 701 of the
ritual order, when it includes the caveat that a trial can take longer than two
years when as in this case, the delays cannot be attributed to the Judge's
view of the above, it must be concluded that the reasonableness of the period
is set by the extremes of Article 380 of the Argentine Code of Criminal
Procedure, together with the assessment thereof by the trial judge.
This conclusion coincides with what has been stated by the European
Court, when it states:
Court also believes that to decide whether, in a given case, the detention of
the accused does not exceed the limits of what is reasonable, it behooves the
national judicial authorities to investigate all circumstances which, because of
their nature, lead to acknowledge or reject the existence of true public
interest which justifies the repeal of the rule of respect for individual
liberty (NEUMEISTER Case, sentence dated June 27, 1968, TEDH-5.P.83, Legal
Eighth. It does seem necessary, for brevity's sake, to engage in a
detailed analysis of the criteria or factors which the European Commission of
Human Rights examined in connection with the problem of a "reasonable
period" in order to define an old and vague concept of international law.
Both the interested petitioner and Government have made their views known
the Commission wishes to refer to three factors or features:
The actual duration of imprisonment; b. the nature of the acts which led
to proceedings against Firmenich; and, c. the difficulties or judicial problems
encountered when conducting said trials.
The duration of imprisonment
claimant holds that the term indicated in Article 379, 6 as related to Article
701 of the Code of Criminal Procedure must be computed starting on February 13,
1984, when he was arrested in Rio de Janeiro (Brazil).
Government holds that the accused was turned over to Argentine authorities on
October 20, 1984, and that, therefore, the "reasonable period"
mentioned in Article 7, subsection 5 of the Convention must be computed as of
that date, "…without prejudice to the time between both dates which must
be credited to the sentence."
Commission believes that the opinion of the claimant cannot be entertained since
between the date of arrest in Rio and the delivery of the prisoner to the
Argentine authorities, extradition proceedings were conducted and that they and
the pertinent decision are subject (except insofar as the filing of the petition
by the requesting State is concerned) to the authorities with jurisdiction in
the State to whom the request for extradition is submitted, according to the
latter's internal law and terms of the treaty applicable between both States, if
any, or in the absence thereof, international practice.
foregoing is also valid when applied to the petitioner's claim that the
procedural responsibility of the accused cannot be taken into consideration
during the extradition proceedings since the latter takes place without the
participation of the accused. Firmenich's
extradition followed provisions set out in the treaty applicable between
Argentina and Brazil (1961), whose Article V indicates that the individual whose
extradition is requested must be granted "the opportunity to exercise all
the remedies and appeal to all instances foreseen by the legislation of the
Stated receiving the request", remedies and instances which were actually
employed by Mr. Firmenich to prevent or delay his extradition.
The nature of the crimes
claimant was extradited for trial in connection with two different crimes (non
bis in idem): one by the
Federal courts (in Buenos Aires) for charges of double aggravated homicide in
connection with attempted homicide, also with doubly aggravating circumstances
and a request for life imprisonment; the other (Federal Court in San Martín),
for twofold homicide with aggravating circumstances and kidnapping for ransom
and a request for life and additional imprisonment.
conclusion and in the light of the provisions in Article 380 of the Argentine
Code of Criminal Procedure, the Commission is of the opinion that the
characteristics of the (punishable) actions as described in the initial briefs
of these proceedings and the penalties which could be imposed on the accused
make it possible to assume, on a solid basis, that measures must be taken to
forestall an avoidance of justice and that, hence, a request for release must be
Difficulties encountered during the trials
the two trials against the claimant as is evidenced by the record, an intense
investigation was conducted with the active participation of the accused, so
Case tried in San Martín (Province of Buenos Aires) wherein
charges were filed in November of 1985, and the defense requested several
extensions to answer the charges. Testimony
was frequently waived, or offered extemporaneously on other occasions, "new
facts" were introduced and international letters rogatory were dispatched
to elicit depositions and during which the judge declared the defense negligent
in submitting evidence or portions thereof.
Summary investigations lasted one year, trial starting in approximately
November of 1986, as far as the Commission is able to deduce from the evidence
submitted to it. Approximately 50
witnesses and an indeterminate number of accused, but not tried, and linked in
one way or another to the case testified during the trial.
It must be pointed out that, according to the record, some testimony was
given after difficult proceedings and international letters rogatory requested
by the defense. The trial phase, as
such, was completed in 1987 and sentence passed in May of that year.
The sentence of the first instance has been appealed by the defense, and
the appeal is still pending. The
sentence is prior to submission of the case to the IACHR.
ii. The case
before the federal courts (Federal Capital):
As evidenced by the record, the investigation was interrupted from
February 1982 until February 1984. The
accused was charged in October of 1986. Ninety
witnesses testified, 3 ballistic tests were conducted, two tests were conducted
on explosives, 2 expert witnesses testified in connection with scopametorics, 2
handwriting experts testified, one expert witness testified on mechanics and
another on typewriters during the investigation.
Thirty Official Letters were sent, many through Interpol and others
through the Ministry of Foreign Affairs, requesting evidence, which would serve
information purposes. Charges were
made on October 2, 1986, but the defense made an appearance only on March 16,
1987, because of request for release it had submitted and 3 requests for
extension which were granted by the judge.
On May 15, 1987, the defense suggested taking depositions from several
witnesses outside the country, that a mechanical expert be called and 40 letters
be sent, all of which was done in addition to granting a 90 day (extraordinary)
term for submission of evidence, which had twice to be extended.
On June 14, 1988, sentence was passed in the first instance.
foregoing makes it possible to draw the conclusion that although four years is
not a reasonable period, in this case because of its unique features and the
complexity of the reasons affecting its progress such a period is not an
unjustified delay I the administration of justice.
Ninth. As to the defendant's allegation that a violation of the
guarantee of the principle of innocence (Article 8, subsection 2 of the
Convention) is occurring in these proceedings and when his request for release
is turned down, the Commission believes such an allegation to be inadmissible,
since the record does not show that the proceedings have been conducted in a
manner contrary to law, nor that the refusal to release the prisoner is a
violation of due process because: the
cases have been conducted according to the Code of Criminal Procedure which
preexisted the actions for which he is accused and that it is applied to all
Argentines accused of the crimes therein defined; that the rules were applied by
judges with jurisdiction or "natural", called upon to hear these cases
and that the proceedings followed the rules set out in the Code itself.
Tenth. Neither does the Commission believe that the allegation of
the petitioner should be considered, when he claims that this a "serious
and urgent" case (Article 48, 2 of the Convention) since the record shows
that the accused is not being subjected to cruel, inhuman or degrading
treatment, that he enjoys the defense of learned counsel and judicial guarantees
required by his defense in court and that, therefore, the case does not justify
such a treatment.
In view of the foregoing conclusions, the Commission has decided to
declare that no violation of the American Convention on Human Rights has
occurred in connection with Case 10.037, the subject of this report and that
notice of this finding be given to the claimant and the Government of the