On February 20, 1997, the Bar Association of the Federal Capital
of Argentina (Colegio Público de
Abogados de la Capital Federal, hereinafter "Colegio
Público"), the Legal and Social Studies Center (Centro de
Estudios Legales y Sociales, CELS), and the Center for Justice and
International Law, CEJIL (hereinafter "the petitioners"),
submitted a petition to the Inter-American Commission on Human Rights
(hereinafter the "Commission" or the "Inter-American
Commission"), alleging that the Argentine Republic (hereinafter
"the State" or "Argentina") violated the rights
established in the American Convention on Human Rights (hereinafter the
"Convention" or the "American Convention"), to the
detriment of Mr. Horacio Anibal Schillizzi Moreno.
The petition indicates that upon a motion for recusation, on
August 17, 1995 the judges of Chamber "F" of the National
Court of Appeals in Civil Matters for the Federal Capital (hereinafter
the "Court") sanctioned Mr. Schillizzi, an attorney for one of
the parties in a trial, to three days of detention for "maneuvers
aimed at obstructing justice."
The petitioners allege that the detention order was carried out
without respecting judicial guarantees (Article 8), because the court
was not impartial, no grounds were given for the decision, the court did
not allow the right of defense, and there was no judicial review of the
sentence. The petitioners
also argue that the detention was arbitrary and illegal, violating the
right to personal liberty (Article 7), and that the judicial
authorities' rejection of the request that the sanction be served under
house arrest violated the right to humane treatment (Article 5) and the
right to equality before the law (Article 24).
In view of all the foregoing, it is argued, it also violated the
duty to respect the rights established in the Convention (Article 1).
On examining the admissibility of this case, the Commission
decides that it has jurisdiction to take cognizance of the petition and
it declares the petitioners' claims regarding the alleged violations of
Articles 1, 7, 8, and 25 of the Convention to be admissible, as they
meet the requirements set forth in Articles 46 and 47 of the Convention.
Nonetheless, it decides to postpone a decision on compliance with
the requirement set forth in Article 46(1)(a) of the Convention until
there is a ruling on the alleged violations of Articles 8 and 25 of the
Convention in the examination of the merits of the case.
The Commission declares inadmissible the petitioners' claims
regarding the alleged violations of Articles 5 and 24, as they do not
meet the requirement established in Article 47(b) of the Convention.
PROCESSING BY THE COMMISSION
On February 20, 1997, the Commission received the petition, which
was forwarded to the State on March 25, 1987, with a request that it
present its observations within 90 days.
The State requested extensions on June 23, 1997, and August 12,
1997, which were granted; the State's answer was received on September
24, 1997. The petitioners requested an extension of the time allowed to
respond to it, and submitted their answer on December 23, 1997.
On February 26, 1998, the Commission granted the parties a
hearing during its 98th regular session.
On February 14, 1998, the State requested an extension on two
consecutive occasions, and submitted its observations on July 15, 1998.
On May 28, 1998, the petitioners sent complementary information,
which was answered by the State, and after being given an extension
requested on September 18, 1998, the petitioners submitted their
observations on December 29, 1998.
At the request of the petitioners, a hearing was scheduled during
the 102nd session, which was suspended.
On August 27, 1999, Mr. Schillizzi submitted a brief, which was
forwarded to the State. On
September 30, 1999, the parties were given a hearing during the 104th
session. On December 29,
1999, Mr. Schillizzi sent additional information, and on January 4,
2000, it was sent to the State, which was given 30 days to answer.
On February 15, 2000, the State requested an extension, which was
not granted. At the date of
this report, no reply has been received from the State.
POSITIONS OF THE PARTIES
Position of the petitioners
The petitioners allege that the decision by Chamber "F"
of the National Court of Appeals in Civil Matters for the Federal
Capital (hereinafter the "Court") in the proceedings "Banco
Credit Lyonnais Argentina S.A. v.
La Escisión S.A. re: Recusation with cause" of August 17,
1995, in which it refused to admit the recusation pursued by Mr.
Schillizzi--who, as attorney, defended one of the parties to the
trial--declared it to be malicious, and sentenced him to three days of
detention for maneuvers aimed at obstructing justice.
The petitioners allege that in the face of that sanction, both
the Colegio Público and Mr.
Schillizzi pursued and exhausted domestic remedies with the judgment of
the Supreme Court of Justice of Argentina (hereinafter "Supreme
Court") of August 20, 1996, which rejected the appeal for a review
of facts as well as law (recurso
de hecho) filed by the Colegio
petitioners alleged that the extraordinary writ was not effective
procedure for reviewing the administrative sanction, because courts have
full discretion to accept or reject it without having to state the
grounds for their decision. The fact that a special motion (recurso
extraordinario) has to be filed shows that Argentine legislation
does not have a regular judicial mechanism to review the imposition of
such administrative sanctions. Therefore,
it does not meet the requirements of the Convention to ensure judicial
review in this case. While
the right to be represented by the Colegio
Público does not derive from Article 8 of the Convention, the
seriousness of the sanction imposed on one of its members, Mr.
Schillizzi, was of import to the institution, triggering its
intercession on his behalf, in an effort to remedy the situation
alleged. The petitioners
allege that this is not an isolated case, and they cite the case of
another attorney who was sentenced to detention for similar reasons.
In his case the appeal for reversal , the special motion, and the
appeal for review of facts as well as law were all denied.
The petitioners stated that the Colegio
Público may submit a petition to the Commission because it is a
non-governmental organization subject to public law whose function is to
defend and oversee the exercise of the legal profession; because it was
established by a law of the Nation, and the State delegated to it the
function of administering the registration and overseeing the conduct of
attorneys by imposing disciplinary sanctions; and it is vested by law
with the competency to sue and be sued that is needed to bring public
actions. Its status as an entity governed by public law does not mean it
acts on behalf of and in representation of the State, for it does not
depend on nor is it controlled by any State agency--as is the case of
other entities at public law, such as securities exchanges, stock
markets, and some private universities; it elects its own authorities by
vote of the member attorneys, supports itself through their
contributions, and does not depend on nor it is subjected to State
The petitioners allege that the Court imposed the sanction in the
exercise of its powers to establish order that the Code of Procedure
confers on it, and under Article 18 of decree-law Nº 1285/58, regarding
the organization of the court, which gives the judges the authority to
sanction the employees and officers of the judicial system.
This decree was derogated and later ratified by Law Nº 14.467,
which extends the authority to sanction attorneys, and was later amended
by Law Nº 24.289 of 1993. The
petitioners argue that the judges imposed a sanction on Mr. Schillizzi
without respecting the due process guarantees that any accused enjoys in
a criminal case, citing decisions of the Commission in cases 8095
and 9269 to support the proposition that when a measure imposed
administratively is comparable in its gravity to a criminal sentence,
the presumption of innocence and all other guarantees provided for
criminal proceedings must be respected. If
there was criminal conduct meriting a prison sentence, it should have
been reported to the competent authorities to pursue a criminal
proceeding. In any case, the court should have presented the complaint
to the Bar Association, for it to initiate a disciplinary action, with
due process guarantees, in order to determine if there were grounds for
imposing a disciplinary sanction on Mr. Schillizi.
The petitioners argued that the Court did not substantiate its
decision to punish Mr. Schillizzi for exercising the right of recusation
and violated the right to defense when it took the view that the
exercise of this right obstructed the civil proceeding in which he was
defending one of the parties. This
sanction did not ensure the order or viability of the proceedings, nor
did it protect the rights of the other party.
They also consider, based on Article 30 of the Convention, that
this "open-ended" description of the conduct sanctioned,
"obstruction of justice," is insufficient to make it possible
to weigh the incriminatory evidence and that the gravity of the sanction
imposed requires, to some extent, the proper determination of the
actions sanctioned. The
petitioners add that the judges were not impartial, as they were
bothered, affected, or offended by the recusations presented by Mr.
Schillizzi, and, consequently, had a personal interest in imposing the
As regards the right to personal liberty, the petitioners
consider that the detention order is arbitrary, since a law was applied
that is incompatible with respect for the right to liberty.
They believe that the disciplinary provisions under Act 23.187
regarding the Bar Association should have been applied. The court should
therefore have referred the corresponding complaint to the Bar
Association, as the sole authority for making ethical judgments regarding the
conduct of lawyers and applying the relevant sanctions.
if not carried out, the threat of its enforcement subsists.
In addition, the petitioners consider that the detention imposed
on Mr. Schillizzi poses a danger to his physical, psychic, and moral
integrity. Mr. Schillizzi
is ill, is an older man, and is being sanctioned by deprivation of
liberty in the same place and with the same treatment accorded persons
who are criminally accused, or convicted, and subjected to degrading
situations such as having his shoelaces and belt removed, and being
The petitioners also allege violation of the right to equality
before the law, considering that the judges refused to apply Article 10
of the Criminal Code, which provides for house arrest for convicts over
60 years of age. The
unequal treatment derives from depriving Mr. Schillizzi of the rights
granted to a person accused of an offense, and because the requirement
that the sentence effectively be carried out contrasts with the
possibility of suspending sentences to imprisonment provided for under
The petitioners allege that the detention of Mr. Schillizzi was
not carried out due to the many challenges to this decision, even though
the court issued the order to the Chief of the Federal Police of
Argentina. In addition, they state that Mr. Schillizzi may be subjected
to this sanction when he appears before the courts, and that he is
outside the country because he is not willing to submit to enforcement
of the detention, and that he requests compensation on this account. With respect to the relief requested from the Commission by
Mr. Schillizzi, the petitioners do not join him in this part of the
The state alleged that in the course of executing a mortgage that
normally would have taken six months, Mr. Schillizzi presented several
recusations against different Chambers of the Court, so that execution
took three years. First, he
recused the judge of first instance, and his recusation was denied by
Chamber "C"; second, he recused Chamber "C," and the
motion was removed to Chamber "A," where it was also denied;
third, he recused Chamber "A" and the case was removed to
Chamber "F", which also denied the recusation and ordered a
three-day detention. The
State alleged that the sanction did not punish the exercise of the right
of recusation but the abuse of that right, in the form of malicious
recusations designed to postpone payment of a debt.
In its first observations submitted to the Commission on
September 24, 1997, the State noted, with respect to the exhaustion of
domestic remedies, that Mr. Schillizzi "had access to suitable
remedies, and was able to pursue them and exhaust them even though he
did not succeed in having the punishment revoked."
He sought annulment of the sanction before the same Chamber,
which was rejected. On
October 20 and November 1, 1995, he asked that Chamber to be allowed to
serve the period of detention in his home.
Later, on November 13, 1995, he went before the Supreme Court
arguing delay in the administration of justice or the denial of justice
addressed in Article 167 of the National Code of Civil and Commercial
Procedure, because the Court had not answered, and he argued the
unconstitutionality of Article 18, Decree 1285/58. The Supreme Court rejected the motion alleging delay, given
that the Court had already addressed the matter on November 6, 1995,
prior to the filing of this motion.
At the Commission hearing held on September 30, 1999, the State
added to its position the argument that Mr. Schillizzi did not, himself,
exhaust the special remedy, but that it had been filed by the Colegio
Público, and, assuming that Mr. Schillizzi's rights had been
violated, this was the appropriate remedy for addressing those
violations. In addition,
the State argued that Mr. Schillizzi, on filing his motions, did not
object to the sanction itself, but to its enforcement in the judicial
detention facility. The
precedent cited is Case 998/90 before the Civil Law Court, concerning a
superintendency investigation following irregularities in a series of
judicial auctions. In this precedent, the attorney who has been
sanctioned had sought reconsideration before the Court en
banc, made up of more than 45 members; he later filed a special
motion and the Court switched detention in the judicial detention
facility to house arrest.
The State alleges that the Supreme Court has developed case-law
on the special motion and that its ability to accept or reject it is not
entirely discretional. Specifically, it cites the Giroldi
case, in which the Supreme Court decided that the special motion was not
a remedy of appeal. However,
in that specific case it admitted the motion and revised the criminal
ruling. In other words,
under certain circumstances, a special motion may serve as a remedy of
appeal. While it is true
that the Colegio Público filed the special motion and the appeal for review
of facts as well as law, it is not a victim in this case.
Therefore, the State does not accept the notion that the Supreme
Court decision of August 20, 1996, which rejects the complaint appeal
against the denial of the special motion, is the decision that exhausts
domestic remedies in this case, in the terms of Article 46(1)(a) of the
The State asserts that the Colegio
Público lacks standing to be a petitioner because it does not act
in the capacity of "any person or group of persons, or any
nongovernmental entity" as provided for in Article 44 of the
Convention, which was evidently intended to qualify persons other than
those who represent the authorities to lodge a petition.
The Colegio Público meets the prerequisites and characteristics of a
typical public law body in terms of legal status, and, in the exercise
of the powers conferred on it by law, it performs functions delegated to
it by public authority to oversee the legality of law practice in the
capital of the Argentine Republic.
In other words, the Bar Association is a policing entity that
forms part of the political organization of the state, with the nature,
rights, and obligations of juristic persons subject to public law, and
which acts in the name of and in representation of the State.
The State accepts the standing of CELS and CEJIL to come forth as
petitioners, and that of the representative of the Colegio
Público, acting on his own behalf, but not in his capacity as
representative of the Colegio Público.
With respect to the right to defense, the State points out that
Mr. Schillizzi was able to file the motion for reversal or
reconsideration, and exhaust it, even though he did not achieve his
objective, and never pursued the special motion.
The courts did not accept the standing or representation of the Colegio
Público in these proceedings.
The sanction imposed was confirmed by the appeals court that
served as an impartial judicial review body, as required by the
With respect to the impartiality of the Court, the State holds
that it is a matter of opinion, and therefore proves nothing.
The State argues hypothetically that perhaps the court would have
been considered impartial if, instead of detention, it had imposed a
sanction not entailing deprivation of liberty.
This context explains the description, in the petition, of
"the partiality of the judges who are hearing a case," based
on the mere fact that they impose a sanction on an attorney.
The State alleges that the sanction was imposed based on a law in
force, and that a procedure existed that made it possible to review that
sanction, even had there been a violation of the right to due process.
In addition, it notes that there is no provision in Law 23.187 or
its regulations for the conduct for which Mr. Schillizzi was sanctioned.
Therefore, the law referred to by the petitioners was not applicable.
The State understands that even though one may take issue with the type
of sanction imposed, this does not mean it should be considered a
violation of human rights. The
Court never demanded enforcement of the sanction, and it never issued
any arrest warrant to the local or international police.
Moreover, Mr. Schillizzi pointed out to the Court that he had not
received any notification, when it came to the time decided for serving
the period of detention in the judicial detention facility.
The only authority capable of preventing the exercise of the
legal profession is the Colegio Público,
and this organ has posed no obstacles to Mr. Schillizzi’s practice of
the law. In view of the
foregoing, Mr. Schillizzi was never kept from exercising his profession
following imposition of a disciplinary sanction, and consequently, no
compensation is called for.
The State points out that there is no violation of Mr.
Schillizzi's right to humane treatment or right to equality before the
law, because, under the terms of Article 10 of the Criminal Code, house
arrest is not a right of the interested party, but rather a power of the
court, when imposing a sanction. These
powers to apply sanctions cannot be limited by criteria that are binding
for all, because, if that were the case, the courts would have to be
forced to impose a given sanction. The State is of the view that these
arguments are inadmissible because the sanction imposed has not been
enforced, the case has been shelved, and the sanction has prescribed.
The State considers that there have not been other cases
identical to that of Mr. Schillizzi, and that the petitioners have
failed to establish difference of treatment in any way.
ANALYSIS OF ADMISSIBILITY
The Commission's jurisdiction ratione
temporis, ratione loci, ratione personae, and ratione materiae
The Commission has jurisdiction
ratione materiae, ratione
personae pasiva, ratione loci, and
ratione temporis to hear this case, as the alleged violations of Mr.
Schillizzi's rights under Articles 1, 5, 7, 8, and 25 of the Convention
are attributed to agents of Argentina, a State party to the Convention,
and were allegedly committed in its territory after Argentina ratified
With respect to jurisdiction ratione
personae and the petitioners’ right to bring a case, the
Commission observes that the non-governmental organizations CELS and
CEJIL enjoy such standing to lodge the petition in question, and that
the Colegio Público submitted
its arguments together with those NGOs.
Therefore, the pronouncement on the standing of the Colegio
Público is not a determining factor for establishing jurisdiction ratione personae in this case, and does not preclude the possibility
of a subsequent decision thereon.
Other admissibility requirements
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention establishes the requirement to
exhaust domestic remedies, pursuant to generally accepted principles of
international law. First,
the Commission notes that in this case both the State and the petitioner
agree that Mr. Schillizzi filed the motion for reversal or
reconsideration of the sanction before the Court on August 31, 1995.
Nonetheless, the State argues that Mr. Schillizzi did not object
to the sanction itself, but to its being served in the judicial
detention facilities. From the analysis of the evidence submitted by the
petitioners, the Commission observes that the motion filed by Mr.
Schillizzi presents substantially the same arguments made before the
Commission. Mr. Schillizzi
objected to the sanction itself, on the grounds that it was arbitrary in
that it punished the right to recusation, it was imposed without due
process of law, it constituted a violation of the right to liberty, and
it was based on a provision that is null and void.
The request that Mr. Schillizzi made to the Court to be allowed
to comply with the sanction at his home was subsidiary to the request
that the sanction be revoked.
The Commission also notes that once the Court rejected the motion
for reconsideration on September 21, 1995, and rejected the special
motion presented by the Colegio Público
on October 12, 1995, Mr. Schillizzi reiterated his petition to the Court
to have the sanction imposed in the form of house arrest, on October 20
and November 1, 1995. Both motions were denied on November 6, 1995. On November 13, 1995, Mr. Schillizzi filed the action before
the Supreme Court on grounds of delay by the Court in rendering a
decision, pursuant to Article 167 of the National Code of Civil and
Commercial Procedure, and argued that the sanction was unconstitutional. This motion was rejected on May 7, 1996, as it was deemed
that the Court had issued a ruling at the appropriate time, prior to
this submission, on November 6, 1995.
Second, the State has alleged that Mr. Schillizzi failed to
pursue the remedy of the special motion provided for in Argentine
legislation. Consequently, the Commission believes that the State must
indicate the adequacy and effectiveness of the extraordinary writ.
The State cites as precedent Case 998/90 of the Civil Law Court, and the
Giroldi case, as grounds for
defining the special motion as an adequate and effective remedy.
The petitioners reject the State's argument and argue that the
administrative sanction imposed by the Court cannot be reviewed via a
special motion because it is a discretional power of the courts to admit
it or reject it, and Argentine legislation has no regular judicial
mechanism to review the imposition of this type of administrative
The exhaustion of domestic remedies should not be understood as
the need to go through the mechanics of formal procedures; rather, in
each case, the reasonable opportunity of obtaining redress should be
The Commission has recognized on prior occasions that in some
cases special remedies, such as the motion alleging unconstitutionality,
may constitute adequate and effective remedies for human rights
Here, the parties discuss, inter
alia, the nature of the sanction imposed upon Mr. Schillizzi,
specifically, whether it is disciplinary and corrective or punitive in
nature. In Giroldi, which the
State adduced to show that the extraordinary writ would be an effective
remedy for the violations alleged by the petitioners, there is reference
to criminal matters.
Having examined the facts and arguments presented by the parties, the
Commission considers that the adequacy and effectiveness of the special
motion poses complex questions in respect of issues arising under
Articles 8 and 25 of the Convention that justify looking at them
together with the merits of the case.
Consequently, the Commission is of the view that the case cannot
be declared inadmissible for failure to exhaust domestic remedies.
Third, while domestic remedies must be exhausted by the alleged
victim in the particular circumstances of this case, the Commission
considers that the special motion filed by the Colegio
Público on October 5, 1995, against the decision of September 21,
1995, had the purpose of conferring standing on the Colegio Público to
defend attorneys, and specifically to act in the case of Mr. Schillizzi.
Nonetheless, the October 12, 1995 decision of the Court was not
limited to reiterating the rejection of its standing; it also addressed
enforcement of the sanction that had been imposed on Mr. Schillizzi.
In this respect, the Court stated:
account of the status of the proceedings, and as the sanction imposed at
folios 59/61 has become final, and without prejudice to the indications
contained in the last paragraph of folio 76/dorso, Dr. Horacio Aníbal
Schillizzi Moreno shall be informed that within 10 days he must present
himself at the Alcaldía of the Palace of Justice for the purposes of
the detention ordered in the proceedings.
Let notice be given.
prejudice to this, and said attorney having been notified, the
above-ordered measure shall be reported to the Chief of the Federal
Police so that, in the event of failure to comply, he may proceed
immediately to enforce the sanction imposed.
From the text quoted above, the Commission notes that, in
rejecting the special motion submitted by the Colegio
Público, the Court decides to consider the sanction imposed final
and orders its enforcement even though it did not review the grounds for
it. Given this
circumstance, the Commission considers that while this special motion
does not exhaust domestic remedies in this case, Mr. Schillizzi had a
legitimate and direct interest in this part of the Court’s decision.
Period allowed for submitting a petition to the Commission
Article 46(1)(b) of the American Convention provides that a
petition, to be admitted, 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."
At no time during the processing of this case before the
Commission did the State allege there was a failure to meet the deadline
requirements for the remedies exhausted by Mr. Schillizzi. Consequently, the State may be considered
to have tacitly abandoned any objection based on failure to comply with
this requirement. Consequently, the Commission concludes that the
petition complies with the requirement established in Article 46(1)(b)
of the Convention.
Duplication of procedures and res
Articles 46(1)(c) and 47(d) of the Convention establish as
admissibility requirements, respectively, that the subject matter of the
petition must not be pending settlement in another international
procedure, and that it must not substantially reproduce a prior petition
already examined by the Commission or other international organ.
The Commission considers that the subject matter does not
reproduce a petition already examined by this or any other international
body, nor is it the substantial reproduction of a prior petition.
Therefore, the Commission
concludes that the requirements established at Articles 46(1)(c)
and 47(d) of the Convention have been met.
Characterization of alleged violations of the Convention
Article 47(b) of the Convention establishes that any petition
that "does not state facts that tend to establish a violation of
the rights guaranteed by this Convention" will be inadmissible. In
this case, the petitioners alleged that Article 8 of the Convention was
violated with respect to Mr. Schillizzi because: a) there were no
jurisdictional control regarding the decision imposing the sanction upon
him; b) the sanction was of a kind imposed for a criminal offense and
therefore the guarantees under Article 8(2) were applicable; c) in any
case, a disciplinary procedure, incorporating the due guarantees under
Article 8(1), should have been started; d) the sanction hampers the
right to defense, since it delays the proceeding and this favors of one
of the parties; e) the broad description of the conduct does not make it
possible to weight the charges and, d) the Court that imposed the
sanction was not impartial and provided no grounds for its decision.
On previous occasions, the Inter-American Commission considered
various factors to determine the applicability of the guarantees
established in Article 8(1) and 2 of the American Convention.
These factors include the nature of the behavior, act, or
omission described, the authorities that may impose sanctions, and the
nature and gravity of the sanction imposed and its consequences.
These factors are not exclusive, and it may be necessary to consider
other elements, depending on the unique nature of each case.
However, the Commission wishes to state that it does not have the
jurisdiction to determine which authority, the judges or the bar
association, is responsible for sanctioning lawyers with respect to the
exercise of their profession. That
is a function of the State organs.
The Commission has jurisdiction to determine if a state party has
violated the Convention.
Regarding the allegations of the petitioners concerning the right
to personal liberty under Article 7, the Commission considers that they
are related to Article 8, which justifies their examination with the
merits of the case. In addition, the allegations of the petitioners
concerning judicial protection under Article 25 of the Convention call
for an examination of the merits. The
Commission concludes that the facts alleged by the petitioners are
admissible pursuant to Article 47(b), because, if proven, they may be
violations of Articles 7, 8, and 25 of the Convention.
As to the alleged violation of the right to humane treatment
under Article 5 of the Convention, the petitioners alleged that this
right was violated when the judicial authorities refused Mr.
Schillizzi’s request to serve the sentence under house arrest on
account of his health and age. Moreover,
serving the sentence in prison, along with other inmates, would subject
him to situations in which he would be subject to indignities, such as
the deprivation of his shoelaces, his belt, and being handcuffed.
The State alleged that the sanction ordered had not been carried
out. The Commission considers it necessary to point out that Mr.
Schillizzi’s personal circumstances, such as his age or the state of
his health, do not per se render
a detention a violation of Article 5 of the Convention.
In examining the arguments put forward by the parties and the
minutes and documents in the file, the Commission notes that Mr.
Schillizzi has not undergone the detention that was served on him.
Therefore, there is no way of proving in
abstracto whether or not he would have been deprived of the medical
care required to protect his health and bodily integrity.
Furthermore, the Commission considers that the petitioners have
not adduced any reasonable evidence that tends to prove that Mr.
Schillizi ran the risk of compromising his bodily integrity if he were
to serve the prison sentence in the court detention center.
What is more, based on the analysis of the case file, it appears
that on September 21, 1995, Chamber "F" of the National Court
of Appeals in Civil Matters for the Federal Capital, in rejecting the
motion for reconsideration by Mr. Schillizzi, also ordered that
"the authority should take steps to prevent the procedure from
endangering the dignity or personal decorum of the person on whom the
sanction is imposed." The
Cámara's decision of October 12, 1995, ruled on the enforcement of the
sanction that had been imposed on Mr. Schillizzi, without prejudice to
the above. In view of the circumstances indicated, the Commission
considers that since the sanction was not carried out, it cannot be
proved in abstracto that it
would have violated his bodily integrity. Consequently, the Commission
concludes that the facts alleged by the petitioner do not characterize
violations of Article 5, and, therefore, this part of the petition is
declared inadmissible, under Article 47(b) of the Convention.
As regards the right to equal protection under Article 24 of the
Convention, the petitioners argued that the Court did not treat Mr.
Schillizi fairly. On the one hand, the judges refused to apply Article
10 of the Penal Code, 
which provides for house arrest for convicts over 60 years of age and,
on the other hand, a case was presented in which the Court allowed a
lawyer to serve his sentence at home.
The State noted that the Court may order house arrest, but is not
legally required to do so. It
also noted that the petitioners have not shown disparate treatment.
Regarding the right to equal protection before the law, the
Inter-American Court held that:
follows that there would be no discrimination in differences in
treatment of individuals by a state when the classifications selected
are based on substantial factual differences and there exists a
reasonable relationship of proportionality between these differences and
the aims of the legal rule under review.
The Commission has on prior occasions said that “in order to
determine that a ruling handed down by a court violates Article 24 of
the Convention, it is necessary to find, at least, that the court ruled
in a manner radically different from a previous ruling involving a legal
situation with nearly identical factual terms.”
In Consorcio Arenales
1560/62 c. Picard, Jorge Alberto s/cobro de honorarios (fee recovery),
adduced by the petitioners, the Argentine courts converted a jail
sentence to one to be served under house arrest.
That case was similar in outcome to this one. In fact, in Mr.
Picard’s case, the judicial authorities considered the petition in the
context of the legal remedies sought, and refused the request to serve
the sentence under house arrest. But
the Court made a special concession, on its own initiative, subsequent
to the decision of the Supreme Court turning down the appeal for review
of facts as well as law. The
Commission believes that the fact that Mr. Schillizzi was not granted
the same gratuitous privilege as other attorneys is not per
Furthermore, the Commission wishes to note that the rule that was
applied to Mr. Schillizzi also provides for the possibility of the
person concerned to serve the sentence at his/her home, similar to
Article 10 of the Penal Code which makes the same provision for
convicted persons. In fact,
Article 18 of the Act 1285/58 (the text of which is taken from Law
24.289, Article 2) states that the prison sentence will be served in a
facility attached to the tribunal or court or in the home of the person
sanctioned. The Commission considers it necessary to reiterate that the
right to equality before the law cannot be considered tantamount to the
right to an equal outcome in decisions referring to the same subject
Commission concludes that the facts alleged by the petitioners do not
characterize violations of Article 24, and, therefore, this part of the
petition is declared inadmissible, pursuant to Article 47(b) of the
The Commission concludes that it has jurisdiction to hear this
case and that the petition is admissible with respect to the alleged
violations of Articles 1, 7, 8, and 25 of the Convention, pursuant to
Articles 46 and 47 of the Convention. However, it decides to defer the
decision on fulfillment of the requirement under Article 46(1)(a) of the
Convention until a ruling is made on the alleged violations of Articles
8 and 25 of the Convention and on the merits of the case.
The petitioners' arguments regarding the alleged violations of
the right to humane treatment and the right to equality before the law
established in Articles 5 and 24 of the Convention are declared
inadmissible, as they do not make out violations of the Convention,
pursuant to the provisions of Article 47(b) of the Convention.
Based on the arguments of fact and law set forth above, and
without prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged
violations of Articles 1, 7, 8, and 25 of the Convention.
To declare this case inadmissible with respect to the alleged
violations of Articles 5 and 24 of the Convention.
To notify the parties of this decision.
To continue to analyze the merits.
To make itself available to the parties for the purpose of
reaching a friendly settlement based on respect for the rights set forth
in the Convention, and to invite the parties to state their position
with respect to such a possibility;
To publish this decision and include it in its Annual Report for
the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights in the city of Washington, D.C., on the 7 day of March 2000.
Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Commissioners
Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado
The Second Vice-Chairman of the Commission, Juan Méndez, an
Argentine national, did not participate in the debate or in the vote
on this case, in accordance with Article 19(2)(a) of the Regulations
of the Commission.
Case of "Consorcio
Arenales 1560/62 v. Picard, Jorge Alberto, re: the collection of
The petitioners cite the cases of Albert
Le Compte v. Belgium and Obermeier
v. Austria from the European Court of Human Rights.
Inter-American Commission on Human Rights, Annual Report 1984-1985,
Resolution Nos. 10/85 and 11/85 of March 5, 1985, pp. 34 and 37
Taken from Inter-American Commission on Human Rights, Annual Report
1987-1988, Case Nos. 9777 and 9718, Argentina, March 30, 1988, pp.
The Supreme Court stated:
"considering that moving party invokes the delay in
rendering the judgment with respect to the matter filed with
Division 'F' of the National
Court of Appeals in Civil Matters for the Federal Capital,
and that as inferred from what was reported by that organ, it has
issued the pronouncement required prior to the submission under
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Preliminary Objections, Judgment of June 26, 1987, para. 88.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of July 29, 1988, para. 72; Case of Fairén Garbi and Solís
Corrales, Preliminary Objections, Judgment of March 15, 1989, para.
97; Case of Godínez Cruz, Judgment of January 20, 1989, para. 75.
Inter-American Commission on Human Rights, Report Nº 104/99, Case
11,400, Eolo Margaroli and Josefina Ghiringhelli de Margaroli,
Argentina, Decision of September 27, 1999. Para. 54.
the report 55/97, case 11,137, Abella and others, par. 270, the
Inter American Commission stated in relation with the sentence
issued in the case Giroldi by the Supreme Court:
April 7, 1995 judgment of the Supreme Court of Argentina in the case
of Horacio David Giroldi
(No. 32/93) --decided after it had rejected the special appeal in
the Abella case-- is
particularly relevant to issue under examination.
At that trial, Mr. Giroldi had been convicted by a Criminal
Court ("Tribunal Oral en lo Criminal") and given a one-month
prison sentence, which was suspended, for the crime of attempted
The defense brought a writ of cassation ("recurso
de casación"), arguing that the decision violated the
right of defense at trial, and that the procedural limitation on the
exercise of the remedy, in view of the amount of the penalty, was
The National Chamber of Criminal Cassation ("Cámara
Nacional de Casación Penal") rejected the argument of
unconstitutionality and denied the motion for cassation.
The defense brought a special appeal against that decision,
the denial of which led to a complaint appeal before the Supreme
Court of Justice of Argentina.
The Supreme Court ruled favorably on the complaint appeal,
and rendered without effect the judgment appealed, citing as the
basis for its decision the guarantee at Article 8(2)(h) of the
See: Inter-American Court of Human Rights, Case of Neira Alegría,
Preliminary Objections, December 11, 1991, paras. 25-31;
Inter-American Commission of Human Rights, Report Nº 124/99,
case 11.765, Grenada. September 27, 1999. Para. 28; Inter-American
Commission of Human Rights, Report Nº 104/99, Case 11.400, Eolo
Margaroli and Josefina Ghiringhelli de Margarolli, Argentina,
September 27, 1999. Para. 56; Inter-American Commission of Human
Rights, Report Nº 67/98, Case 11.738, Elba Clotilde Perrone and
Preckel, Argentina. May 4, Para. 38.
The Inter-American Commission on Human Rights on Report Nº 6/98,
Case 10.832, Maximo Rodríguez, Argentina, February 21, 1998,
considered inter alia the
nature of the behavior, act, or omission described (paragraphs 45,
47 and 48), the authorities that may impose sanctions (paragraph
45), and the nature and gravity of the sanction imposed and its
consequences (paragraph 46).
In this respect, the European Commission on Human Rights and the
Council of Ministers of the European system agree that there is no
violation of Article 3 of the European Convention on Human Rights in
the case of a 74-year-old who is diabetic and has a cardiovascular
condition. This person was detained for 35 months.
Jabobs, Francis G. and White, Robin C.A., in The European
Convention of Human Rights, 2nd edition, Clarendon Paperbacks, p.
Case of Bonnechaux v. Switzerland, application Nº 8224/78,
decision of December 5, 1978, (1979) 15DR 211, and December 5, 1979,
(1980) 18DR 100; 1981 3 EHRR 259.
Article 10 states: When the time in prison not exceed 10 months, the
honest women and persons older than 69 years old, or valetudinarias may be detained in theirs onw homes.
Inter-American Court of Human Rights, Advisory Opinion OC-4/84,
January 19, 1984, para. 57. Quoted in the Report No 39/96, pag 87.
Inter-American Commission on Human Rights, Report 8/98, case 11.671,
Carlos Gracía Saccone, Argentina, of March 2, 1998, para. 40.
Nº 39/96, Case 11.673, Santiago
Marzioni, Argentina, para. 43, the IACHR affirmed that the right
to equal protection of the law cannot be assimilated to the right to
equal outcome in judicial proceedings involving the same subject
If such were the case, the Argentine Supreme Court would have
to grant extraordinary writs to every plaintiff who invokes the same
rules, or who presents similar arguments by the same attorney, without
regard to the particular circumstances of each case.
Such a situation would be juridically absurd and