Report No. 129 (2020) IACHR. Petition No. 1714-07 (Argentina)

• Year: 2020
• Petition Number: 1714-07
• Report Number: 129
• Respondent State: Argentina
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Nerina Claudia Pojmaevich

REPORT No. 129/20

PETITION 1714-07

ADMISSIBILITY REPORT

NERINA CLAUDIA POJMAEVICH

ARGENTINA

OEA/Ser.L/V/II.

D.. 139

27 A. 2020

Original: Spanish

Electronically approved by the Commission on A. 27, 2020.

Cite as: IACHR R. No. 129/20. Petition 1714-07. A.. Nerina Claudia Pojmaevich. Argentina. A. 27, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Josefina Margaroli and S.L.M.
Alleged victim:	Nerina Claudia Pojmaevich
Respondent S.:	Argentina
Rights invoked:	Article 5 (humane treatment), 8 (fair trial), 10 (compensation), 11 (honor and dignity), 21 (private property), and 25 (judicial protection) of the American Convention on Human Rights,1 in conjunction with its articles 1 (duty to respect rights) and 2 (duty to adopt domestic legal effects); article 2 (forms of violence against women), 3 (life free from violence), 4 (rights of women), 7 (duty of S.s), and 8 (duty to adopt domestic legal effects) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women;2 articles I (life, liberty, security, and the security of person), II (equality before the law), V (honor, reputation, and private and family life), XIV (work and fair remuneration), XVII (recognition of juridical personality and civil rights), XVIII (justice), XXIII (property), and XXIV (petition) of the American D. of the Rights and Duties of Man;3 and other international instruments4

II. PROCEEDINGS BEFORE THE IACHR⁵

Filing of the petition:	August 27, 2007.
Additional information received at the phase of initial review:	M. 10, J.2., and December 19, 2008; M. 13, 2013; J.6., 2014; February 19, 2016
N. of the petition to the S.:	J. 14, 2016
S.’s first response:	J. 31, 2017
Additional observations from the petitioner:	October 10, 2017; J. 14, 2018; and December 20, 2018
Additional observations from the S.:	J. 22, 2019.

III. COMPETENCE

Competence ratione personae:	Y.
Competence ratione loci:	Y.
Competence ratione temporis:	Y.
Competence ratione materiae:	Y., American Convention (ratification instrument deposited on September 5, 1984); and Convention of Belém do Pará (ratification instrument deposited on J. 5, 1996)

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
Rights declared admissible:	Article 8 (fair trial), 21 (private property), and 25 (judicial protection) of the American Convention, in conjunction with its articles 1(1) (duty to respect rights), 2 (duty to adopt domestic legal effects), 5 (humane treatment), and 11 (honor and dignity); and Article 7 of the Convention of Belém do Pará.
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., pursuant to the terms of Section VI
Timeliness of the petition:	Y., pursuant to the terms of Section VI

V. ALLEGED FACTS

1. Josefina Margaroli and S.L.M. (hereinafter "the petitioners") allege violations of the human rights of Nerina Claudia Pojmaevich (hereinafter "the alleged victim"), claiming that she was unjustly dismissed and the victim of sexual abuse and harassment, as well as labor, moral, and psychological harassment at her workplace, the Argentina office of the United Nations Children's Fund (hereinafter "UNICEF Argentina"). They allege that even though she obtained judicial rulings granting her compensation for the harm she suffered, they have not been made effective because of the immunity from execution that the S. has granted to UNICEF, resulting in a denial of justice that has prolonged the alleged victim’s suffering. They also allege that the S. did not provide effective protection from harassment to individuals working in the private sector, and that it does not offer adequate opportunities for private parties to take part in defending their rights during administrative processes to address illegal behavior by public officials.

2. The petitioner indicates that on October 20, 2005, a labor suit was filed before the National Labor Trial Court on behalf of the alleged victim against UNICEF Argentina and the company TERCERIZACIÓN RH S.A., seeking recognition that she had been the victim of harassment and abuse in her working environment and the granting of compensation for, inter alia, her unjustified dismissal. In A. 2011, the court issued a judgment convicting both codefendants. The judgment recognized that the dismissal had been unjustified and ordered compensation for it. H., it did not make any determinations regarding the alleged sexual abuse and sexual, workplace, moral, and psychological harassment in her working environment, concluding that these issues were the subject of a civil action that was in process before National Civil Trial Court No. 75. The alleged victim appealed the judgment. Her appeal was rejected, with the court finding that in her suit, the alleged victim had not requested compensation for the harassment and abuse and had indicated that she would seek damages civilly for the harm suffered from the harassment. T. decision was appealed through an extraordinary federal remedy and, following its rejection, through a motion for reconsideration of dismissal of appeal. F., on November 6, 2012, the Supreme Court of Justice of the Nation denied the motion for reconsideration of dismissal of appeal, exhausting the labor courts.

3. According to the petitioners, the alleged victim requested that a UNICEF Argentina account be seized in order to ensure compliance with the judgment handed down against the organization; however, on M. 11, 2013, the labor court denied this measure, finding that the organization was protected by immunity from execution. In response, and in view of the insolvency of the codefendant private company, the petitioner states that the alleged victim has not been able to collect on the compensation awarded for the unjustified dismissal and argued that the S. must be held responsible for paying it because it had granted immunity to UNICEF.

4. The petitioner also states that, in the framework of the labor proceeding, the trial court judge illegally extended the deadline for response and did not hold UNICEF in contempt, as required by law. The alleged victim therefore filed suit against her before the Council of the M. (hereinafter the “CNM”) and the Office of the Public Prosecutor. The petitioner argues that the administrative process carried out did not provide due process guarantees. It indicates that the alleged victim and her representatives were prevented by law from being a party to that process and were not able to access the case file. The petitioners also add that they were not able to appeal the CNM decision dismissing the suit and closing the file on the process, as the law only allows for review of CNM decisions that apply a disciplinary sanction. They argue that the S. violates due process and equal protection by failing to provide for a remedy for the complainant in the event of acquittal, whereas those who receive penalties are offered the chance to appeal.

5. They also report that a criminal process was launched against the judge for breach of legal duty, in which the alleged victim and her representatives were prevented from taking part as complainants. In response to the filing of an appeal for reversal, in December 2006, the trial court dismissed it and allowed the alleged victim to act as complainant. The alleged victim appealed the ruling to dismiss, but it was upheld by a higher court in M. 2007. A cassation appeal was filed in response, which was denied in November 2007. A motion for reconsideration of dismissal of appeal was filed in response, which was rejected in November 2007.

6. The petitioners also filed a suit for damages against UNICEF and the officials that had harassed her, the company TERCERIZACIÓN RH S.A., and the National S. seeking compensation for the sexual harassment and abuse and the workplace moral and psychological harassment suffered by the alleged victim. They state that on September 16, 2014, the trial court found that the harm resulting from the sexual harassment had been substantiated and ordered UNICEF to provide compensation to the alleged victim for pecuniary, nonpecuniary, and psychological damages. The alleged victim appealed this decision, arguing that the National S. should have also been required to pay compensation, as it had granted immunity to UNICEF, and indicates that...