Report No. 104 (2021) IACHR. Petition No. 1331-08 (Argentina)

Year2021
Case TypeAdmissibility
Respondent StateArgentina
CourtInter-American Comission of Human Rights
R. No. 104/21















REPORT No. 104/21

PETITION 1331-08

REPORT ON ADMISSIBILITY


ALEJANDRO MARCOS CERVIÑO

ARGENTINA



OEA/Ser.L/V/II

Doc. 111

3 junio 2021

Original: English



























Approved electronically by the Commission on J.3., 2021.







Cite as: IACHR, R. No. 104/21, Petition 1331-08. A.. Alejandro Marcos Cerviño. Argentina. J.3., 2021.





www.iachr.org


I. INFORMATION ABOUT THE PETITION

Petitioner:

Alejandro Marcos Cerviño

Alleged victim:

Alejandro Marcos Cerviño

Respondent S.:

Argentina

R.s invoked:

Article 8 (R. to Fair Trial), 11 (R. to Privacy), 21 (R. to Property), 24 (R. to Equal Protection), 25 (R. to Judicial Protection), 26 (Progressive Development), 28 (Federal Clause), and 29 (Restrictions Regarding Interpretation) of the American Convention in relation to its Articles 1 (obligation to respect rights) and 2 (domestic legal effects) of the American Convention on Human R.s1; Articles II (R. to Equality Before the Law); XVII (R. to Recognition of Juridical Personality and Civil R.s); XVIII (R. to Fair Trial); XXIII (R. to Property); XXIV (R. to petition) of the American Declaration of the R.s and Duties of Man2; together with other rights invoked under an international instrument.3

II. PROCEEDINGS BEFORE THE IACHR4

Filing of the petition:

November 12, 2008

Additional information received at the stage of initial review:

October 31, 2012

N. of the petition to the S.:

May 28, 2014

S.’s first response:

M. 5, 2015

Additional observations from the petitioner:

J. 19, 2016

Additional observations from the S.:

October 11, 2016, December 6, 2016

III. COMPETENCE

Competence Ratione personae:

Y. and no (see Section VI)

Competence Ratione loci:

Y.

Competence Ratione temporis:

Y.

Competence Ratione materiae:

Y.; American Convention (deposit of ratification instrument on September 5, 1984)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:

No

R.s declared admissible

Articles 5 (R. to Personal Integrity), 7 (R. to Liberty), 8 (R. to a Fair Trial), and 25 (R. to Judicial Protection), of the American Convention

Exhaustion of domestic remedies or applicability of an exception to the rule:

Y., under the terms of Section VI


Timeliness of the petition:

Y., under the terms of Section VI

V. ALLEGED FACTS


  1. The petitioner and alleged victim essentially raises two separate but related complaints, the first of which centers on his attempt to obtain full legal title to property that he acquired in or about 1999 in Pinchas, Department of C.B., P. of La Rioja. The second complaint is about an alleged campaign of harassment conducted between 2002 and 2006 by persons who opposed the petitioner’s ownership of said property, supposedly with the support and complicity of the police and certain politicians.


I. of title to property


  1. According to the petitioner, the property was acquired through a corporate entity that he founded called ASCHA S.A. from a vendor who held a possessory title to it, after being in uninterrupted possession for more than 20 years. The petitioner alleges that he bought the property for the development of an ecological tourist attraction.


  1. He further asserts that in or about 2002 he initiated legal proceedings (juicio de usucapión) before the C. of Civil, Commercial and Mining of the Superior C. of Justice of La Rioja (Superior Tribunal de Justicia de la Rioja), with a view to perfecting the title to the property. According to the petitioner, the proceedings were opposed by a group of persons together with two corporate entities called El Consorcio de Usuarios de Agua de Pinchas and La Union Vecinal de Pinchas. The petitioner alleges that these opposing parties presented fraudulent documentation with respect to the property; and that they claimed that granting full title to ASCHA would affect their right to access to potable water and to irrigation. A., the petitioner asserts that he made a preliminary objection to the C. to the effect that the opposing parties had no legal standing to participate in the matter; the preliminary objection was dismissed in or around November 2003. The petitioner also contends that during the proceedings the three C. judges recused themselves; but that the judicial organ was subsequently reconstituted with two of them, plus a new judge. According to the petitioner, the recusal and subsequent reconstitution of the C. resulted in, or contributed to an arbitrary decision against him and ASCHA S.A.


  1. Following the C.’s decision, the petitioner appealed through the ASCHA S.A. to the Superior C. of Justice of La Rioja. The appeal was initially decided in his favor in 2004, but in 2006, the C. reversed itself with a contrary decision. The petitioner considers that this reversal is evidence of lack of independence and impartiality on the part of the tribunal.


  1. In 2006, again through ASCHA S.A. the petitioner applied to Superior C. of Justice of La Rioja by means of a special federal remedy (recurso extraordinario federal) to send the matter to the Supreme C. (Corte Suprema de Justicia de la Nación) for consideration and decision; this application was denied in 2006. The petitioner subsequently filed complaints to various S. authorities, including the Ministry of Government and Human R.s of La Rioja; the national Human R.s Department (Secretaría de Derechos Humanos de La Nación); and to the La Rioja office of the national Ombudsperson (Defensoría del Pueblo de La Nación - Provincia de La Rioja). The petitioner states that none of these complaints materialized in any relief; ultimately, he contends that the state and judicial authorities have impeded him from perfecting title to the property.


I. of harassment and intimidation


  1. The petitioner also alleges that his attempt to regularize the title to his property coincided with a campaign of harassment and intimidation by a group of persons opposed to him gaining full title thereto, which started in or around 2002 and went on until 2006. He further contends that he and his staff were subjected to various types of criminal behavior, including destruction of organic crops and irrigation systems, robbery of tools, and death threats; he submits that in J. 2004, his dog and some poultry were poisoned and killed.


  1. According to the petitioner, he was also subjected to harassment by the police, who arrested him at his house on either J. 16, 2004 or February 14, 2004 and took him to a station some 15 kilometers away. He was allegedly detained for 48 hours without charge or a court order; and prevented from communicating with his lawyer. U. release, the petitioner went home to find that it had been ransacked and robbed. These criminal activities allegedly took place with the acquiescence of the police, and with the support of some political authorities. The petitioner complained to various authorities, including the Criminal and Correctional C. of Aimogasta; the Secretary of Security for the La Rioja and the P. Prosecutor (Fiscal de Estado de la Provincia de La Rioja); however, all these initiatives were unsuccessful. According to the petitioner, in or about October 2005 the Prosecutor opened a case5, which was subsequently archived without any decision rendered. The petitioner asserts that none of these authorities took any concrete steps to investigate this alleged campaign of harassment and intimidation.


  1. The petitioner alleges that he decided to leave the property in 2006 in the interest of his own personal security, and that it was ultimately sold in 2014. He considers that the of harassment and intimidation campaign --together with the absence of intervention by the authorities-- not only put him in fear for his life, but also caused or contributed to financial and economic loss.


  1. The S. contends that the petition is inadmissible on the following grounds: lack of competence ratione personae in relation to the issue of acquisition of land title; failure to exhaust domestic remedies; and failure to state facts that prima facie establish a violation of the American Convention. Argentina also contends that any consideration of the petition by the IACHR would be a violation of the so-called “fourth instance formula”.


  1. On the issue of competence ratione personae, the S. contends that the acquisition of the property and the subsequent judicial proceedings were conducted in the name of ASCHA, S.A., a juridical entity. In this respect, the S. argues that the American Convention protects persons, and not artificial legal entities; and that, accordingly, the Commission has no competence to deal with...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT