On December 13, 1996, Mr. Luis María Gotelli, Jr. (hereinafter
“the petitioner”) submitted a petition to the Inter-American
Commission on Human Rights (hereinafter “the Commission” or “the
Inter-American Commission”) against the Argentine Republic
(hereinafter “the State,” “the Argentine State,” or
“Argentina”), alleging that it violated rights set forth in the
American Convention on Human Rights (hereinafter “the Convention” or
“the American Convention”) with respect to both himself and his
The petitioner alleges that during proceedings in the case
“Complaint by Tulio Franzosi regarding irregularities at Banco
de Italia y Río de La Plata,” brought against him and his family
before National First-Instance Federal Criminal and Correctional Court Nº
2, their right to a fair trial (Article 8(1)) was violated by the fact
that the trial had lasted longer than 12 years and was still going on.
He also claims that this delay negatively affected the rights of
presumption of innocence (Article 8(2)), defense (Article 8(2)(d)), the
nonextension of punishments to other persons (Article 5(3)), the family
(Article 17), the aim of imprisonment being reform and social adaptation
(Article 5(6), respect for honor and recognition of dignity (Article
11(1), equality before the law (Article 24), and simple and prompt
recourse (Article 25(1) enshrined in the American Convention.
Following the Commission’s offer to make itself available to
the parties in order to reach a friendly settlement in this case, on the
day of the hearing granted by the Commission during its 97th regular
session, October 6, 1997, the parties signed an agreement which was
filed with the Commission’s secretariat that same day. In this
agreement, the State recognized that in the petitioner’s case and
within the aforesaid context, “the right to be tried within a
reasonable period (Article 8(1) of the Convention) was violated” and
it promised to disassociate him from the criminal proceedings.
Subsequently, on September 15, 1998, in light of the State’s
noncompliance, the petitioner asked the Commission to continue with the
steps set forth in its Regulations and issue a report under Article 50
of the Convention.
The Commission decided to first analyze the admissibility of the
case prior to issuing a report under Article 50 of the Convention. It thus concluded that it was competent to examine the matter
and that the petitioner’s allegations regarding the violation of the
right to due process caused by the delay in the criminal investigation
(Article 8(1), of the right to the presumption of innocence (Article
8(2), and of the right of defense (Article 8(2)(d) were admissible under
the terms of Articles 46 and 47 of the Convention.
However, the Commission ruled that under Article 47(b) of the
Convention, the claims alleging violations of the right to humane
treatment (Article 5(3), of the right of imprisonment being aimed at
reform and social adaptation (Article 5(6)), and of the rights of the
family (Article 17) were inadmissible.
The Commission also ruled that the petitioner’s allegations
regarding violations of the right of honor (Article 11(1)), of equality
before the law (Article 24), and to effective recourse (Article 25(1)
were inadmissible under Article 47(c) of the Convention.
II. PROCESSING BY THE
On December 17, 1996, the Commission opened this case, sent the
relevant parts of the complaint to the State, and asked it to supply
information. After the
Commission had granted several extensions, the State submitted its
comments on June 17, 1997; these were sent to the petitioner on June 26,
who was given a period of 30 days to formulate his reply.
On July 24, 1997, the petitioner submitted his comments on the
On July 29, 1997, the Commission sent the petitioner’s reply to
the State and granted it a 30-day period for submitting its comments.
In the same note, the Commission made itself available to the
parties with a view to reaching a friendly settlement under Article
48(1)(f) of the Convention and Articles 45(1) and 45(2) of its
Regulations in light of the nature of this case and within a framework
of full respect toward the objective and purpose of the Convention.
On September 2, 1997, the State accepted the friendly settlement
procedure and reserved the right to “consider and improve the legal
arguments” already set forth in the initial document at a later date,
specifically during the friendly settlement procedure.
On September 15, 1997, this communication was transmitted to the
At a hearing held on October 6, 1997, during the Commission’s
97th regular session, the representatives of the petitioner and the
State reported that their talks had led to an agreement, which was set
down in writing that same day. This
agreement’s recitals show that the State’s reply of June 17, 1997
recognized that “in the
petitioner’s case and within the aforesaid context, the right to be
tried within a reasonable period (Article 8(1) of the Convention) was
violated.” In the
agreement the parties stipulated that “the Government will take every
step toward definitively disassociating the petitioner from the
aforesaid proceedings within the briefest possible time,” and that a
report on compliance with this was to be given to the Commission within
a maximum of 75 days.
On December 26, 1997, the State told the Commission that further
to the parties’ agreement, Mr. Gotelli’s lawyers submitted a
document requesting that the statute of limitations be applied to the
proceedings against him. The
basis for that request was a ruling handed down by the National Federal
Criminal and Correctional Appeals Chamber in the Federal Capital in a
similar case, which was at that time pending a decision from the office
of the national attorney general. However,
on September 15, 1998, the petitioner told the Commission that, “given
the Argentine Government’s obvious noncompliance with the commitment
to reach a friendly settlement made before this honorable Commission
after recognizing the justice of the claim, I am forced to request that
this negotiating procedure be terminated.” He also asked the
Commission to continue “with the relevant procedure under Article 50
of the Convention.” This
communication was transmitted to the State on September 28, 1998, with a
60-day period for it to submit its comments.
On December 2, 1998, the State requested an extension to the
period allotted for its reply; consequently, a 45-day extension was
granted on December 14, 1998.
On January 29, 1999, the State reported that it was taking the
appropriate steps, which had been delayed on account of the summer
recess. A request by the
State for an additional extension on March 5, 1999, was granted on March
8, 1999, for a period of 30 days. On
April 13, 1999, the State again requested an extension and was awarded a
further 30 days.
POSITIONS OF THE PARTIES
The petitioner’s position
The petitioner stated that on May 24, 1985, Mr. Tulio Franzosi
filed a complaint with National First-Instance Investigating Criminal
Court Nº 20, accusing the petitioner’s family of several crimes
proscribed by Articles 173.7, 300, and 301 of the Criminal Code
(hereinafter referred to by its Spanish abbreviation “CP”), because
they held senior posts at the Banco de Italia y Río de la Plata (hereinafter “the BIRP”), and
against senior managers, shareholders, and guarantors of corporations
that received loans from that bank, including the petitioner.
The issue brought before the court was the alleged asset
stripping or bankruptcy suffered by the BIRP as a result of the policy
adopted by its senior management in granting those companies enormous
loans, in both pesos and dollars, which had never been repaid to the
bank. The BIRP was
liquidated by the Central Bank of the Argentine Republic (hereinafter
The petitioner explained the different judicial rulings and
decisions handed down since the start of the proceedings.
With regard to the decision on admissibility, the most salient of
these were the following: on August 23, 1985, the court ordered the
start of investigatory proceedings, with the BCRA acting as complainant;
on September 29, 1985, National First-Instance
Federal Criminal and
Correctional Court Nº 2 was given exclusive
competence over the matter; on March 12, 1986, that court ordered the
petitioner and other persons to be brought to trial and, on February 23,
1987, it ordered an expert accounting audit to be conducted.
On April 8, 1987, the office of the national attorney general
assigned an assistant prosecutor to the proceedings and, on June 16,
1987, the case prosecutors asked the accused to provide the
investigation with statements. On September 22, 1987, the court ordered
the expert accountants to begin the audit it had requested and, on
November 12, 1987, the petitioner gave his statement.
On March 31, 1989, the expert accountants told the court that
there had been delays and complications in conducting the audit and, on
March 17, 1989, the court instructed the BCRA liquidator in charge of
the BIRP to provide the expert accountants with the documents needed to
finish the audit.
On May 9, 1989, the court ordered the preventive arrest of
several individuals, including the petitioner, against which their
attorneys filed dismissal motions and appeals.
On June 30, 1989, the National Federal Criminal and Correctional
Appeals Chamber summoned the parties to state their case, which took
place at a hearing on September 12, 1989.
On September 28, 1989, the chamber ordered the court to send it
the main trial documents and, on October 12, 1989, it sent the documents
to the prosecutor for him to offer an opinion on the remedies filed.
On November 6, 1989, before the appeals chamber, the petitioner
accused the first-instance and appeal prosecutors of obstructing the
expert audit in contravention of the Code of Criminal Procedure
(hereinafter “the CPMP”).
On December 12, 1989, the petitioner filed an objection with the
chamber for having granted four consecutive extensions to the (expired)
deadline imposed on the prosecutor for ruling on the preventive arrests. On December 14, 1989, the chamber granted a further extension
to the prosecutor, who submitted his report on December 15, 1989.
On March 26, 1991, in addition to upholding the preventive
custody ordered by the court and dismissing its cancellation, the
chamber modified the number of charges.
On May 23, 1991, the court received the case and, on June 11,
1991, requested the evidence ordered by the chamber, including a fresh
expert audit. On July 23,
1991, the court declared the petitioner in contempt and ordered his
arrest; this was overturned on October 11, 1991, after the chamber
admitted the extraordinary remedy filed by the petitioner against the
decision to revoke the exemption from custody.
On February 17, 1992, the court recorded the conclusion of the
second expert audit. On October 23, 1992, it sought the opinions of the
complainants and the prosecutor regarding the points on which a
dismissal should be given and where charges should be filed.
On November 12, 1992, the BCRA objected to the closure of the
investigatory proceedings and asked for elaboration of the statements
given by the accused, including the petitioner, in light of a new
hypothesis. On November 16,
1992, the court sent the prosecutor the documents dealing with the
extraordinary remedy filed by the petitioner on October 11, 1991.
On April 20, 1993, the prosecutor gave an opinion in which he
stated that the phase of the investigatory proceedings into the
allegations against the petitioner should be closed and that the other
allegations made against other defendants should be dismissed.
This opinion was sent to the court on April 23, 1993.
On July 22, 1993, the chamber asked the case to be referred to it
to resolve a motion for the release from prison of one of the accused
and the self-disqualification request by the judge in charge of Court Nº
2. On September 28, 1993,
the chamber accepted the judge’s disqualification and gave
instructions that proceedings with the case would continue in Court Nº
1, which received the case on October 18, 1993. The prosecutors reported to this court on November 22, 1993.
On March 16, 1994, the court summoned the complainants and the
prosecutor to give their opinions on a series of issues. On April 4,
1994, the BCRA expressed its opposition to the dismissals and asked for
an elaboration of the statements given by the accused, including the
petitioner. On April 21, 1994, the prosecutor repeated his opinion
regarding those dismissals.
On April 28, 1994, the prosecutors asked for new evidence and the
complainants demanded that progress be made with the proceedings.
On May 3, 1994, the prosecutors presented and requested evidence
and, on May 18, the court dismissed the case against several
individuals. On May 26,
1994, the prosecutor asked for a detailed, itemized list of the illicit
loans that were allegedly extended.
On May 30, 1994, the court sought the complainants’ opinion
regarding the legal situation of one of the accused; the prosecutor’s
reply was submitted on September 2, 1994.
On September 14, 1994, the complainants asked for greater
progress to be made with the case. On September 26, 1994, the court took a series of steps under
which, on September 28, the case was sent to the prosecutor.
On April 7, 1995, the prosecutor filed charges against the
petitioner and, on that same date, the chamber asked the court to refer
the proceedings to it in order for it to rule on the appeals filed
against the dismissals that had been handed down; this took place on
April 12. On May 15, 1995,
the court sent the BCRA all the case documents.
On May 26, 1995, the chamber resolved to uphold the dismissals
and to refer the case to the court on May 31.
Between June 7, 1995, and June 15, 1996, the court summoned the
complainants for them to formulate their accusations.
On June 28, the court notified the petitioner of the accusations
that had been made.
Regarding admissibility, the petitioner stated that he had not
submitted this case to any other international body and that it was not
pending any such settlement. The
delays in the proceedings free him from complying with the requirement
of exhausting domestic remedies, as set forth in Article 46(2), and the
absence of a decision renders the deadline stipulated in Article
46(1)(b) of the Convention inapplicable. With regard to the alleged violations, the petitioner stated
Right to a hearing within a reasonable time
The petitioner noted that the central issue in his complaint is
the violation of the right to a hearing within a reasonable period of
time as set forth in Article 8(1) of the Convention.
He claims that the competent authorities have not been diligent
in this regard in light of the following:
The trial has been ongoing for eleven and a half years, and there
is no clear indication of when a final sentence could be expected.
Between the start of the trial and the petitioner being summoned
to give a statement for the investigation, ten months went by.
Between the summons being issued and the actual rendering of the
statement, one year, seven months, and twenty-nine days passed, which
led the prosecutors to file a formal protest.
Substantiating the expert audit took three years, ten months, and
five days, due to the lack of cooperation from the official expert
accountants, whose efforts were hindered by the prosecutors of the
first-instance court and the appeals chamber.
As a result of this, the petitioner filed a formal protest, which
did not prosper.
Three years, eleven months, and fifteen days went by between the
start of proceedings and the preventive arrest order.
While the appeal against the preventive arrests was being
processed, the chamber’s prosecutor was granted five consecutive
extensions, in violation of the terms of the law. From the filing of the
appeal against the arrests to the ruling upholding the cautionary
measure, one year, three months, and eleven days went by.
In addition, the case was held without any progress being made,
at the decision of the chamber itself, for a period of one year, nine
months, and thirteen days. On
June 24, 1987--one year
and eleven months after the legal deadline--a motion was filed as
provided for by Article 206 of the CPMP, which governs compliance with
the timeframes allotted for investigatory
proceedings. In that
motion, the prosecutors referred to the total lack of diligence on the
part of the investigating judge. With
regard to the delay in receiving the investigatory statements, the
prosecutors’ document presented on July 1, 1987, states that the
“failure to carry out this measure affronts [. . .] both the
administration of justice and the legitimate right of defense,” and
again, on February 16, 1989, the prosecutors once more expressed their
concern with how the case was advancing.
Finally, on September 21, 1989, in light of the extensive expert
work and the number of new defendants, the prosecutors suggested
restricting the proceedings to identifying the responsibilities of the
14 individuals who had been placed in preventive custody, whether a
final sentence was to be sought, and what the existing jurisprudence
covered. On September 16,
1987, and March 15, 1989, the chamber had made reference to the delay in
the proceedings, which had already taken almost four years, during which
the “reception of the defendants’ statements for the investigation
suffered an unwarranted delay,” while not ignoring “the obvious
complexity of the proceedings” in which “the large number of parties
involved posed an obstacle to prompt resolution.”
The petitioner claims that the prosecutors were guilty of delays
as serious as or more serious than those with which they charge the
judges. Substantiation of
the Article 206 motion concluded on August 1, 1991.
The petitioner claims that neither the complexity of the case nor
his behavior at trial can be used as arguments to mitigate this pattern
of negligence. First of all, no juridically complex issues were put forward
or debated. Moreover, the
petitioner alleged that the competent bodies in this trial never
established a guiding principle for separating important matters from
lesser issues and, through their lack of expertise and diligence, they
kept adding accusations and individuals indiscriminately.
The petitioner adds that, over the years the trial has lasted,
there has been no exceptional circumstance that would indicate that the
courts are facing an emergency situation or an abnormal workload.
Secondly, as regards the behavior of Mr. Gotelli Jr., he believes
his involvement has been minimal in light of Article 180 of the CPMP.
The petitioner maintained that no end to the uncertainty
regarding his situation was in sight since, with an accusation that
carries a punishment of 20 years in prison, the date on which the
statute of limitations for criminal prosecution comes into effect is set
back by new proceedings that constitute a “continuation of the
trial” (CP, Article 67(4). Hypothetically, the trial could legally continue, from the
present date, for an additional 24 or 36 years, depending on whether the
starting point is taken as being the date of the prosecutors’
accusations or those of the BCRA.
Other alleged violations
The petitioner alleged that other rights protected by the
Convention were violated as a direct consequence of the right to a
hearing within a reasonable time being breached.
Those rights are the following:
Right of defense (Article 8(2)(f))
The petitioner told the Commission that the undue prolongation of
the trial undermined his right of defense by increasing the problems he
faced in organizing his defense. As
time goes by, the acceptable risks calculated in the accused’s ability
to present evidence and counter-arguments increase; similarly, the
possibility of calling witnesses decreases and counter-arguments are
weakened. The petitioner
states that the events under investigation date back to 1979–that is,
more than 17 years ago, when Law 21.526 was passed, establishing a new
regime for financial institutions. Since then, that law has been amended by three later
statutes; four de facto
presidents and two democratic ones have come and gone; the name of the
currency has changed on four occasions; and, in terms of the cost of
living, price inflation reached a level of 252,729,924.0316 percent.
The witness and informational statements used to incriminate the
petitioner were originally received more than nine years ago; it would
therefore be difficult for him to assess those statements during the
evidentiary phase of the proceedings, it now not even being certain
whether the witnesses are still alive or not.
Similarly, new witnesses would find it difficult to recall events
that occurred over a decade ago with any degree of certainty.
As regards the documentary evidence, in performing the expert
audit, which finished more than six years ago, the accountants gave a
detailed report on the level of confusion and disorder in the documents
used to prepare their opinion, and it is now impossible to know in what
state they are. The petitioner states that these documents–which he
would use in his defense and as evidence at trial–are, under orders
from the court (page 13.610), being held by the BCRA, which is in turn
the petitioner’s accuser in this case.
Given this situation, he believes that the chances of his
conducting a real defense are nonexistent.
Right to be presumed innocent and to due legal process (Article
The petitioner alleged that on account of the burden it has
placed on the accused, this endless trial genuinely constitutes
punishment in advance, thus violating the principles of presumption of
innocence and due legal process enshrined in Article 8(2) of the
Convention. The conditions
imposed in the order exempting him from imprisonment themselves
constitute a restriction of his freedom of movement, since the accused
must notify the court of all changes of address and refrain from leaving
the vicinity of the court for longer than 24 hours without prior
permission. Furthermore, a
large sum of money belonging to a third party is being held to guarantee
his appearance. The
petitioner therefore believes that his freedom and feeling of personal
security are affected by a probable judicial ruling that would annul the
exemption from imprisonment and order his arrest, since this already
happened when the chamber revoked bail and, two years later, the court
upheld the extraordinary remedy filed against that decision.
Right to humane treatment (Article 5(3)) and rights of the family
The petitioner claimed that the trial described above has been
causing Mr. Gotelli Jr. psychological and moral harm.
That harm also has a social dimension in that his family is
enduring the uncertainty and anguish of this situation, in addition to
the serious economic losses it entails.
This implies a violation of Articles 5(3) and 17 of the
Convention, which state that punishment cannot be extended to any person
other than the criminal. In this regard, the petitioner explained that the criminal
case has been surrounded by an intense publicity campaign, and so he has
been unable to make any personal or social plans for either the medium
or long term. This has also
had an impact on his family, who must periodically brave the turmoil
caused by this grave state of affairs.
Finally, the petitioner also alleged violations of Article 5(6)
of the Convention, which states that the essential aim of punishments
shall be the reform and social readaptation of the prisoners, of Article
11(1), regarding respect for honor and the recognition of personal
dignity, and of Article 25(1), which deals with judicial protection.
In this regard, he noted that the punishment imposed on him by
this trial is in no way aimed at social readaptation; instead, it
marginalizes him from his social surroundings and undermines his good
name and reputation. It also makes him unequal before the law by making
him, for life, a defendant or a partial convict and denying him all
rights of judicial protection.
With regard to the State’s claim that the petitioner would not
submit proof of the alleged violations of Articles 5, 17, 11, and 24,
since that would be evidence of a negative fact, the petitioner
maintains that evidence of a negative fact is not the issue; rather, it
would be a matter of discussing or recognizing the repercussions of
being involved in a trial of this nature, in which there is no certainty
whatsoever regarding when it might end.
The State’s position
As regards admissibility, the State noted that the requirement of
exhausting domestic remedies set forth in Article 46(1).a of the
American Convention is implicit in the alleged violation of Article
8(2), in that the undue delay in the trial undermines the principles of
presumed innocence and guaranteed defense. It therefore held that a
ruling on the matter must be analyzed in conjunction with the merits of
the case at hand.
The State reported that the allegations occurred between 1984 and
1985 in the context of what was considered an “asset stripping” of
the Banco Italia y Río de La Plata. Judicial proceedings began before
National First-Instance Investigating Criminal Court of the Capital Nº
20 on May 24, 1985, on account of the complaint, and before National
First-Instance Federal Criminal and Correctional Court of the Federal
Capital Nº 2 on August 19, 1985, in the suit filed by the BCRA.
With regard to Mr. Gotelli Jr., it notes that he was indicted on
March 12, 1986; on November 12, 1987, he gave his statement for the
investigation; on May 9, 1989, his preventive arrest was ordered; on
March 26, 1991, the federal appeals chamber upheld his preventive
arrest; on July 23, 1991, the exemption from arrest was dismissed and an
international arrest warrant was issued; on April 7, 1995, the
prosecutors filed charges for administrative misconduct, with a request
for a prison term of 20 years; and on June 25, 1996, charges from the
complainant BCRA were filed.
With regard to the violations of Articles 8 and 25 of the
Convention that the petitioner alleges, the State claimed that the CPMP
applicable in this case contains provisions covering procedural delays,
such as Articles 206 and 695. In
the criminal case brought against Mr. Gotelli Jr., a motion as provided
for in Article 206 of CPMP was filed, by means of which the First
Circuit of the National Federal Criminal and Correctional Appeals
Chamber of the Federal Capital summoned the judge to appear on four
occasions: September 16, 1987; December 23, 1987; March 15, 1989; and
June 29, 1989.
The State commented that, “irrespective of considering
admissible, prima facie, the judge’s claim that the case was complex, and of
the need to analyze the actions of the parties in this case and the way
it has been presented, [and that] with his own actions he could have
contributed to the alleged delay, there can be no doubt regarding the
rulings of the appeal court.”
With regard to the rights enshrined in Articles 8(2) and 25(1) of
the Convention, the State claimed that the Commission’s normal
practice indicates that “Article 8(2) obliges states to gather
together the evidence against the accused in a criminal case” in order
to “establish his guilt.” Establishing guilt implies formulating an
opinion of condemnation [juicio de
reproche] in the final judgment.
If the State fails to reach an opinion of condemnation within a
reasonable period and justifies prolonging the accused’s imprisonment
on the grounds of the suspicions against him, it is using preventive
custody as a substitute for punishment.
On September 2, 1997, in accepting the friendly settlement
procedure, the State reserved the right to “consider and improve the
legal arguments” it had set forth in its initial response. Later, on
October 6, 1997, in the recitals of the agreement entered into by the
parties, the State noted that the reply given on June 17, 1997,
acknowledged that, “in
the petitioner’s case and within the aforesaid context, the right to
be tried within a reasonable period (Article 8(1) of the Convention) was
Finally, in its initial reply the State claimed that the petition
contained no indication of violations of the right to humane treatment
(Article 5 of the Convention), the rights of the family (Article 17),
the aim of imprisonment being reform and social adaptation (Article
5(6)), the right of respect for honor and recognition of dignity
(Article 11(1)), and the right of equality before the law (Article 24).
In this regard, the State holds that the accused has not been
subjected to cruel, inhuman, or degrading treatment; he has not been
convicted; his honor and dignity have not been affected; and it has
certainly not been shown that in his situation, legal protection has
been used in such a way as to violate the principle of equality.
The State did not therefore concur with the allegations made in
this respect, regarding which no evidence is required since it would be
evidence of the non-existence of a fact.
ANALYSIS OF ADMISSIBILITY
The Commission’s rulings on the admissibility of the cases
brought before it are intended not only to invest its decisions with
juridical certainty and clarity, but also to focus the parties’
attention on the key issues those cases entail.
The Commission’s competence ratione
materiae, ratione personae, and ratione
Under its mandate, the Commission has ratione
materiae competence in the matter before it (i.e., it is competent
vis-à-vis the substantive issues of the case), in that the petitioner
alleged violations of human rights protected by Articles 8, 5, 11, 17,
24, and 25 of the American Convention.
Similarly, as regards its ratione
temporis competence (i.e., its competence in terms of when the
incidents occurred), Argentina has been a party to the Convention since
depositing its ratification instrument on September 5, 1984; the
criminal proceedings in which the petitioner alleges the violations of
the Convention took place began after that date.
Regarding its passive ratione
personae competence (i.e., competence vis-à-vis the person), the
Commission notes, first, that the complaints were leveled at Argentina,
a state party to the Convention. Regarding
its active ratione personae competence, the Commission notes that in order to
redress the violation of Article 8(1) of the Convention arising from the
procedural delays, the State expressly acknowledged that there was a
delay in the proceedings and agreed to interrupt the criminal trial.
To this end, on December 26, 1997, the State informed the
Commission that Mr. Gotelli Jr.’s lawyers had submitted a document
requesting that the statute of limitations be applied to the case.
However, on September 15, 1998, the petitioner told the Commission that
the agreement had not been upheld and asked it to issue a report under
the terms of Article 50 of the Convention. In turn, the State has not
expressed its intent to interrupt the friendly settlement; instead, it
has reported that it is taking the steps necessary to implement its
Since the situation reported by the petitioner has not yet been
resolved or remedied on account of the State’s failure to observe the
agreement, the Commission concluded that, in accordance with the terms
of the Convention, the petitioner’s alleged victim status has not
The Commission would like to note that pursuant to Article
48(1)(f) of the Convention, the friendly settlement procedure aims at
“reaching a friendly settlement of the matter on the basis of respect
for the human rights recognized in [the] Convention.” Acceptance of
the procedure demonstrates the State’s willingness to comply with the
goals and objectives of the Convention according to the principle of pacta sunt servanda, by which
states must comply with their treaty obligations in good faith.
However, under Article 45(7) of the Commission’s Regulations,
at any stage in the friendly settlement procedure the Commission can
terminate its involvement as the “organ of conciliation for a friendly
settlement” and continue processing the case, should either of the
parties “not consent to the application of this procedure” or “not
evidence good will in reaching a friendly settlement.”
In the case at hand, the petitioner stated his desire to abandon
the friendly settlement procedure. In accordance with the above article,
the Commission is competent to terminate motu
propio its function as the organ of conciliation and continue
processing the case; however, there is nothing to stop the parties
reaching an agreement regarding the matter at hand at a later stage in
the proceedings before the Commission.
Additional requirements for the admissibility of the petition
Exhaustion of domestic remedies
Under Article 46(1)(a) of the Convention, for a petition to be
admitted, the Commission requires that “remedies under domestic law
have been pursued and exhausted in accordance with generally recognized
principles of international law.”
The purpose of this requirement is to allow states to first
resolve matters within their own legal frameworks before having to face
international proceedings under the inter-American human rights system,
which “reinforces or complements” domestic jurisdiction.
However, when adequate and effective domestic remedies do not
exist, the exception to the prior exhaustion rule set forth in Article
46(2) of the Convention comes into play; this happens if:
(a) the legislation of the state concerned does not afford due
process of law for the protection of the right that has allegedly been
violated, (b) the party alleging violation of his rights has been denied
access to the remedies under domestic law, or (c) there has been
unwarranted delay in rendering a final judgment under the aforementioned
remedies. The Commission
will now analyze the parties’ allegations regarding the rule that
requires the exhaustion of domestic remedies and the exceptions it
In the case at hand, the petitioner alleged that the procedural
delays release him from the requirement of exhausting domestic remedies,
as stipulated by Article 46(2)(c) of the Convention.
The State claimed that the requirement of exhausting domestic
remedies set forth in Article 46(1)(a) of the Convention is implicit in
the alleged violation of Article 8(2) and must be analyzed in
conjunction with the merits of the case. The Commission believes it should analyze compliance with
this requirement together with the substance of the case, in light of
the close relationship between the exception invoked by the petitioner
and the analysis of the merits.
Article 46(1)(b) of the American Convention states that for a
petition to be admitted it must be “lodged within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment.” This provision, the aim of which is to guarantee the parties
certainty and security, does not apply when a final judgment has been
impossible to obtain because of one of the exceptions to the rule
requiring the exhaustion of domestic remedies set forth in Article 46(2)
of the Convention, namely: (a)
if the legislation of the state concerned does not afford due process of
law for the protection of the right that has allegedly been violated,
(b) if the party alleging violation of his rights has been denied access
to the remedies under domestic law, or (c) if there has been unwarranted
delay in rendering a final judgment under the aforementioned remedies.
In the case at hand, the petitioner claimed that the absence of a
judgment caused by the unjustifiable delays makes the limit stipulated
in Article 46(1)(b) of the Convention inapplicable.
The State did not question the petitioner’s allegations.
The Commission concluded in the previous section that the
exception to the domestic remedy exhaustion rule set forth in Article
46(2(c) does apply. In
light of the circumstances analyzed, the Commission holds that the
six-month filing period established in the Convention is not applicable
in the case at hand.
Duplication of proceedings and res
The requirement for admissibility contained in Article 46(1)(c))
stipulates that the subject matter of the petition or communication must
not be pending in another international proceeding for settlement. In addition, Article 47(d) of the Convention states that all
petitions that are substantially the same as one previously studied by
the Commission or by another international organization shall be
inadmissible. In the case
at hand, neither of these circumstances has been proven.
The parties have neither alleged nor shown that the issue placed
before the Commission’s consideration is pending another international
settlement proceeding or has already been decided by another
international body. Neither is it the same as a previously examined
petition. The Commission therefore concludes that these requirements
have been satisfied.
Nature of the allegations
Article 47(b) of the Convention stipulates that the Commission
will dismiss all petitions or communications that do “not state facts
that tend to establish a violation of the rights guaranteed by this
Commission will now analyze whether incidents described in the
petitioner’s allegations meet this rule.
Alleged violation of the right to a hearing within a reasonable
time (Article 8(1))
Article 8(1) of the American Convention establishes the right of
all individuals to be heard “within a reasonable time” in the
substantiation of any accusation made against them.
In connection with this, the Commission notes that in the
agreement signed by the parties, the State recognized that “the
right to be tried within a reasonable period (Article 8(1)) of the
Convention) was violated.”
The Commission declares that the petitioner’s allegations about
the procedural delays are admissible and, if they are true, they could
constitute a violation of the Convention.
According to Article 8(2) of the Convention, “every person
accused of a criminal offense has the right to be presumed innocent so
long as his guilt has not been proven according to law.”
In addition, Article 8(2)(f) states that during the proceedings,
all persons must have the right “to examine witnesses present in the
court and to obtain the appearance, as witnesses, of experts or other
persons who may throw light on the facts.” The Inter-American Court
has stated that the principle of the presumption of innocence contains
the goals of judicial guarantees by holding that all persons are
innocent until their guilt is proven.
The petitioner grounds this part of the petition on subsidiary
arguments related to the alleged violation of Article 8(1) of the
Convention and poses complex legal and factual issues.
The Commission therefore concludes that the petitioner’s
allegations are admissible in that they do tend to establish violations
in accordance with the provisions of Article 47(b) of the Convention.
Alleged violations of the right to humane treatment (Articles
5(3) and 5(6) and the rights of the family (Article 17)
Article 5(3) of the American Convention states that punishment
cannot be extended to any person other than the criminal, and Article
5(6) states that the essential aim of punishments consisting of
deprivation of liberty shall be the reform and social readaptation of
In a strictly formal sense, the word “punishment” (pena
in the Spanish text of the Convention and peine
in the French) refers to a penal sanction imposed by the competent
authorities on a person who has been declared “responsible” or
“guilty.” In the
present case, no punishment has been imposed on Mr. Gotelli Jr., since
the parties’ claims do not indicate that any sanction has been imposed
on him under a ruling issued by the competent authorities in the
Although the Inter-American Court and the Commission have stated
that excessively prolonged preventive custody or arrest can in certain
circumstance constitute a punishment,
the parties’ allegations do not indicate that Mr. Gotelli’s
preventive custody was enforced. Thus,
given the characteristics of this case, the petitioner’s allegations
do not tend to establish a
violation of Article 5(6) of the
Convention. In addition,
considering that Articles 5(3) and 11(1) must be interpreted as set
forth in Article 29 of the Convention, the evidence presented during
these proceedings do not indicate the violations alleged by the
The petitioner also alleges that together with Article 5(6),
Article 17 of the Convention was violated, because his family is
undergoing the uncertainty and anguish caused by this situation, in
conjunction with the publicity campaign and severe financial losses. The
Commission believes that after rejecting the petitioner’s arguments
regarding Article 5(6) of the Convention and in light of the specific
circumstances of this case, the protection set forth in Article 17
cannot be applied to this situation.
The Commission concludes that in the case at hand, the
petitioner’s allegations do not tend to establish a violation of the
right to humane treatment or the rights of the family as set forth in
Articles 5(3), 5(6), and 17, and that those claims are therefore
inadmissible under Article 47(b) of the Convention.
Alleged violations of the right to honor (Article 11(1)), the
right to equality before the law (Article 24), and the right to
effective recourse (Article 25(1))
The petitioner claimed Articles 11(1), 24, and 25(1) were
violated by the trial and the delays it entailed; however, the
Commission notes that the petitioner did not provide sufficient evidence
to substantiate these claims. The
Commission therefore concludes that they are inadmissible by reason of
being manifestly groundless, in accordance with Article 47(c) of the
The Commission concludes that it is competent to hear this case
and that the petition is admissible as regards the alleged violations of
Article 8 of the Convention. However, it believes that under Articles 46
and 47 of the Convention, the petitioner’s allegations regarding
violations of Articles 5(3), 5(6), 11(1), 17, 24, and 25(1) are
Based on the factual and legal considerations outlined above, and
without prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible as regards the alleged violations
of Article 8 of the Convention, and to declare inadmissible the
allegations regarding violations of Articles 5(3), 5(6), 11(1), 17, 24,
To notify the parties of this decision.
To proceed with the analysis of the merits of the case.
To make itself available to the parties in order to reach a
friendly settlement based on respect for the rights enshrined in the
American Convention, and to invite the parties to make a statement
regarding said possibility.
To publish this decision and to include it in its Annual Report
to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights in the city of Washington, D.C., on the Fourteenth day of May,
1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First
Vice-Chairman; Claudio Grossman, Second Vice-Chairman; Commissioners
Alvaro Tirado Mejía, Jean Joseph Exumé, Carlos Ayala, and Henry Forde.
See, inter alia, Inter-American Commission on Human Rights, Annual Report
1998, Report Nº 49/97, Case 11.520, Tomás Porfirio Rondín et
al., “Aguas Blancas” (Mexico), OEA/Ser/L/V/II.98, February
18, 1998, paragraph 50, p. 8.
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment of July 29, 1988, Series C, Nº 4, paragraph 61.
Inter-American Court of Human Rights,
Suárez Rosero Case, Judgment of November
12, 1997, Series C, Nº 35, paragraph 77; Inter-American Commission
on Human Rights, Jorge A. Giménez, Argentina, Case 11.245, Report Nº
12/96, paragraph 114.paragraph 114.