REPORT Nº 45/96
October 16, 1996
to the petition, the California, a vessel under the command of Mr. Jesús
Armando Lara Preciado, sank on January 16, 1972.
Although the event was occasioned by causes beyond Mr. Lara
Preciado's control, from the outset the military authorities attributed
the sinking of the vessel to a failure on his part to exercise due
order of the President of Mexico, the action to ascertain what had
occurred and to institute criminal proceedings was suspended and an
administrative penalty was imposed, whereby Mr. Lara Preciado was
relieved of the command he held at the time and assigned a lower one,
and his right to promotion was suspended.
the penalty was due to expire on April 1, 1974, the Minister of the Navy
notified Mr. Lara Preciado that same year that the penalty would be
extended for an additional two years, thereby precluding any possibility
of advancement in the promotions slated for November 20, 1974.
PROCEEDINGS PRIOR TO FILING THE COMPLAINT BEFORE THE COMMISSION
the decision taken by the Minister of the Navy, the petitioner applied
to the federal courts for a writ of amparo [protection obtained
to ensure due application of law and prevent arbitrary interpretation of
law in violation of constitutionally guaranteed rights] that would
render null and void the decision extending the penalty for a further
two years (Amparo No. 768/74).
He was granted the amparo on February 6, 1976, and
the decision in question was declared and void on grounds of being
unfounded and not in keeping with the terms of articles 14 and 16 of the
Mexican Constitution. Under
the decision, the courts ordered that "Jesús Lara Preciado be
reinstated at a rank equivalent to the one he held prior to the decision
being challenged and accordingly be eligible for the same opportunities
October 10, 1977, the Minister of the Navy advised him "that I have
submitted to His Excellency Lic. Jose López Portillo, President of the
Republic, for his worthy consideration the promotion in reference, which
the President deemed he would be unable to authorize by virtue of the
discretionary powers conferred on him pursuant to Section IV, article
89, of the Constitution of Mexico".
petitioner filed for a second writ of amparo with the judicial
authorities (No. 429/78) whereby the decision to deny him promotion
was declared null and void by virtue of being unfounded and not in
keeping with the terms of articles 14 and 16 of the Mexican Constitution
and on grounds that the powers conferred on the President pursuant to
article 89 are not discretionary.
October 3, 1980, Mr. Lara Preciado was notified that by a decision
of the Constitutional President of Mexico and in compliance with the
court order issued in the judgement of amparo No. 429/78, it
had been deemed contrary to law to grant his promotion.
The petitioner maintains that this decision is tainted with the
same errors as the two previous ones, namely it is unfounded and not in
keeping with the law, and he cites the personal files that he was never
shown or allowed to peruse.
then, the petitioner has taken different steps at every level with a
view to seeking enforcement of the judgement handed down in amparo
No. 429/78 and to seek the release of the personal files that were
alleged to impede his promotion. Mr. Lara
Preciado filed formal complaints with various government authorities and
on December 29, 1990, he submitted a complaint to the National Human
Rights Commission of Mexico which found against the petitioner on
October 25, 1991.
WITH THE COMMISSION
March 25, 1994, the Inter-American Commission on Human Rights received a
complaint that alleged a violation of the right to justice recognized in
Article XXVIII of the American Declaration of the Rights and Duties of
Man. The Commission
indicated that in order to process the petition the petitioner would
have to describe precisely what was alleged to have occurred and provide
information concerning actions taken to exhaust legal remedies available
within the country.
March 13, 1995, the Commission received a communication in which the
alleged facts were described together with information on actions taken
within Mexican jurisdiction. The
Commission registered the case as number 11.492 and forwarded the
pertinent parts of the complaint to the Mexican government.
September 6, 1995, the Mexican Government submitted its observations on
the case, with a request that it be declared inadmissible.
September 10, 1995, the petitioner submitted his considerations,
rejecting the exceptions filed by the Government.
The Commission communicated the pertinent facts of this report to
the Government of Mexico.
November 3, 1995, the Government presented its observations on the
February 13, 1996, the petitioner furnished the Commission with
additional information on the case.
April 6, 1996, the petitioner asked the Commission to make every effort
to seek an amicable settlement, and set out his conditions.
16. On May
8, 1996, the Mexican Government indicated that in examining the
petitioner's claims it felt that an amicable settlement which satisfied
the petitioner's conditions would not be possible.
OF THE PARTIES
Position of the petitioners
17. It is
alleged that Mr. Jesús Lara Preciado's right to a fair trial
recognized in Article XVIII of the American Declaration of the
Rights and Duties of Man has been violated, that he has not been granted
equal treatment before the law, that he has not been protected against
abusive attacks on his honor and reputation, since he was not recognized
as an individual with rights and obligations, was deprived of the right
to a fair trail and due process of law where he could be given an
impartial hearing, was subjected to cruel, infamous, and unusual
punishment, and his right of petition was systematically abused since
his requests in writing went unanswered.
18. It is
further noted that the violations and crimes committed by various
authorities against Mr. Lara are continuing at this time since the
Government's report fails to demonstrate credibly that all of his
requests, complaints, and protests have been given the treatment
prescribed by law or that his petitions would have been examined and
consequently rejects the petition on account of the lapse of time.
Position of the Government
Mexican Government indicated that the "reasonable period" that
should exist between the time of the violation of the rights and the
filing of the complaint has not been observed since amparo No. 429/78
referred to in the petition was dated January 22, 1979, and the petition
is from the year 1995. That
as over 16 years have passed since the judgement referred to was handed
down, it is difficult to assert that the petitioner did not have a
reasonable period in which to present his claim to the IACHR.
Moreover, even assuming that, for purposes of computing the time
period, October 25, 1991, the date on which the National Human Rights
Commission handed down its decision and not the dates of the earlier
judgements, is taken as the date of the final judgement, the petition
would still be outside the prescribed period as six months had already
elapsed since the date on which the individual concerned was notified.
Mexican Government maintains that it was granted protection of the
Federal Courts in the sense that the judgement on the request for
promotion was duly founded and in keeping with the law and was in no way
granted for the purpose of compelling the authorities to promote him.
That amparo No. 429/78 resolved once and for all the
question of the complainant's promotion.
with respect to formal requirements for admissibility.
petition at hand meets the formal requirements of admissibility pursuant
to articles 32, 37, and 39 of the Regulations of the Commission as well
as the terms of subparagraphs 1 a, c, and d of article 46 of the
respect to the requirement set forth in article 46.b of the Convention
and article 38 of the Regulations of the Commission, which establish:
Article 46 of the Convention:
by the Commission of a petition or communication lodged in accordance
with Articles 44 or 45 shall be subject to the following requirements:
the petition or communication is lodged within a period of six months
from the date on which the party alleging the violation of his rights
was notified of the judgment.
Article 38 of the Regulations of the Commission:
Commission shall refrain from taking up those petitions that are lodged
after the six-month period following the date on which the party whose
rights have allegedly been violated has been notified of the final
ruling in cases where the remedies under domestic law have been
the circumstances set forth in Article 37(2) of these Regulations, the
deadline for presentation of a petition to the Commission shall be
within a reasonable period of time, in the Commission's judgment, as
from the date on which the alleged violation of rights has occurred,
considering the circumstances of each specific case.
this sense, the IACHR notes that the petitioner has claimed that the
Executive Branch of the Mexican federal government has failed to comply
with two judgements in connection with amparos granted in favor
of Mr. Lara Preciado in 1976 and 1979. It
further notes that after the communication sent to Mr. Lara
Preciado on October 3, 1980, in which he was notified of the
administrative decision in which it was deemed improper to authorize his
promotion, the individual against whom the injustice is alleged to have
occurred has not availed himself of any legal remedy. Although it is evident from the records of the case that Mr. Lara
Preciado did take steps to seek the enforcement of the judgement on amparo
No. 429/78 and to have access to the personal files that were
alleged to prevent his promotion, these steps were all of an
administrative nature, thereby rendering it impossible to remove the gap
of more than a decade that elapsed between the time the remedies were
considered to have been exhausted and March 25, 1994, the date on which
the first complaint lodged with the Commission was received. Furthermore, if the date on which the period of time in
question is computed were to be taken as the point of reference, the
decision of the National Human Rights Commission, a quasi-judicial body
that issues recommendations, which are therefore not legally
enforceable, would have been approximately three years after the
deadline, since that body issued its ruling on October 25, 1991.
view of the foregoing, the Commission concludes that the present
complaint does not meet the requirements set out in article 46 of the
Convention and article 38 of the Regulations of the Commission since
both the six-month period and the reasonable period for submission of
the complaint considering the circumstances have lapsed.
declare the complaint submitted in case 11.492 inadmissible in
accordance with article 46.1.b of the Convention and article 38 of the
Regulations of the Commission.
transmit this report to the Government and to the petitioner.
publish this report in the Annual Report to the General Assembly of the