Report No. 16 (2010) IACHR. Case No. 11.796 (Argentina)

• Case Number: 11.796
• Year: 2010
• Report Number: 16
• Court: Inter-American Comission of Human Rights
• Case Type: Friendly Settlements
• Respondent State: Argentina
• Alleged Victim: Mario Humberto Gómez Yardez

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REPORT No. 16/10

PETITION 11.796

FRIENDLY SETTLEMENT

MARIO GOMEZ YARDEZ

ARGENTINA

March 16, 2010

1. SUMMARY

1. On August 14, 1997, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition lodged by Diego Lavado and Carlos Varela Álvarez (hereinafter “the petitioners”), in which they alleged the violation by the Argentina (hereinafter “the State” or “Argentina”) of Articles 8.1 and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), in conjunction with Article 1.1 thereof, with respect to Mr. Mario Humberto Gómez Yardez (hereinafter “the alleged victim”).

2. The petitioners stated that on 1990 the alleged victim suffered arbitrary detention and torture by police officers in the course of an investigation for aggravated robbery, aggravated rape, and attempted homicide. They also sustained that Argentina was responsible of the violations to a fair trial and due process suffered by the alleged victim on 1990 during his prosecution by the Mendoza provincial judiciary. The petitioners further contended that the competent authorities had allowed a lengthy amount of time since the commission of the crimes without handing down judgment, as a result of which the accused police officers benefited from the application of statutory limitations.

3. This friendly settlement report, in accordance with Article 49 of the Convention and Article 41 (5) of the Commission’s Rules of Procedure, provides a summary of the facts alleged by the petitioners and transcribes the friendly settlement agreement signed on December 5, 2006, by Argentina, represented by Jorge Cardozo, Advisor to the Ministry of Foreign Affairs, International Trade, and Worship, and Mrs. Andrea Gualde, National Director for International Affairs at the National Human Rights Secretariat; by Gustavo Castiñeria de Dios, Under Secretary of Justice of the Government of Mendoza; and by the petitioner, Dr. Carlos Varela Álvarez. The friendly settlement agreement was approved on May 30, 2007 by the Ministry of Interior, Mendoza Provincial Decree No. 1.107/2007 on May 24, 2007, and ratified by Law No. 7.710 on May 30, 2007. The agreement signed between the parties is also approved, as is the publication of this report.

II. PROCESSING BY THE COMMISSION

4. On October 10, 2000, the IACHR approved Admissibility Report No. 91/00, in which the petition was declared admissible regarding the alleged violations of Articles 8.1 and 25 of the American Convention, in conjunction with Article 1.1 thereof. The Commission also stated that it would consider, during the merits phase, the possible application of Articles 5 and 7. That report was sent to the parties in a communication dated October 24, 2000, in which the IACHR placed itself at the disposal of the parties to reach a friendly settlement of the matter, in accordance with Article 48(1)(f) of the American Convention and Article 40 of its Rules of Procedure. In a communication on November 27, 2000, the petitioners expressed the IACHR that they were willing to embark on friendly settlement proceedings.

5. The Commission received further communications from the petitioners on the following dates: November 27, 2000; March 2 and 15, 2001; July 5, 10, and 16, 2001; August 10 and 16, 2001; September 4 and 13, 2001; November 15, 2001; March 12, 2002; May 7, 2002; August 8, 2002; August 31, 2004; September 20, 2004; and May 3, 2007; all of which were duly forwarded to the State.

6. On the other hand, the IACHR received comments from the State on the following dates: December 15, 2000; April 12 and 18, 2001; October 24, 2001; November 14 and 15, 2001; March 22, 2002; April 4, 2002; July 17, 2002; September 7 and 28, 2004; and December 15, 2004; all of which were duly forwarded to the petitioners.

7. On November 15, 2001, a working meeting between the parties was held at OAS headquarters. In addition, the Commission called on both parties to hold working meetings on the following dates during its periods of sessions: October 26, 2004; December 3, 2004; October 19, 2005; and December 5, 2006.

8. On December 5, 2006, the IACHR received a copy of the friendly settlement agreement signed on December 5, 2006 on one hand, by the petitioner, Dr. Carlos Varela Álvarez; and, on the other, by the Government of the Argentine Republic, represented by Dr. Jorge Cardozo, Cabinet Advisor to the Ministry of Foreign Affairs, International Trade, and Worship, and Dr. Andrea Gualde, National Director for International Affairs at the National Human Rights Secretariat, and by the Government of the Province of Mendoza, represented by Dr. Gustavo Castiñeria de Dios, Under Secretary of Justice. The agreement was approved on May 24, 2007 by the Ministry of Interior of Mendoza by Decree No. 1.107/2007, and ratified on May 30, 2007 by Law No. 7.710.

3. FACTS

9. The petitioners stated that on July 27, 1990, the alleged victim was arrested and his home searched by officers of the Mendoza Provincial Police as part of an investigation for the crimes of aggravated robbery, aggravated rape, and attempted homicide. Both the detention and the search were purportedly unlawful, because according to them there was no court order authorizing them. The alleged victim was initially detained by the highway patrol and then taken by the investigations department of the provincial police department and then he was taken to the Eighth Examining Court, which had shortly before assumed jurisdiction over his arrest. Finally, the alleged victim was transferred to Lavalle Police Precinct No. 17. Furthermore, the petitioners also sustained that while Mr. Gómez Yardez was held in police custody, he was brutally tortured during ten days.

10. According to the petitioners, the decision of the third examining Prosecutor of the First Judicial District, dated April 16, 1996, indicates that the alleged victim suffered various forms of torture, including mock execution, kicking, “waterboarding” and electric shocks to various parts of his body. They added that in such condition, the alleged victim was examined by Dr. Armando Esponda, whom he asked, fruitlessly, to provide medication and analgesics.

11. The petitioners also claimed that when the alleged victim was again brought before the judge, he was found to have lesions of varying levels of severity. As a result of these, he was admitted to Lagomaggiore Hospital and a biopsy was conducted on his scrotum to determine whether electric shocks had been applied. According to the petitioners, the biopsy was lost in one of the State’s offices, as would also later happen with the guard book and incident log from the Lavalle police station.

12. The petitioners stated that on September 6, 1990, the alleged victim filed a complaint for torture, just a few weeks after it had taken place. The Eighth Examining Court began criminal proceedings against Deputy Police Chief Enrique Funes on charges of unlawful duress. Later, on December 21, 1992, the judge amended the charge to that of torture and added the names of nine police officers to the inquiry. The defendants’ counsel filed a motion for dismissal with the Fourth Criminal Chamber, which revoked the court order that had altered and expanded the charges and ordered that the case be referred back to the First Examining Court of the First Judicial District. When the judge handling the case recused herself, the case was passed to the Second Examining Court.

13. In addition, the petitioners indicated that on November 7, 1994, the Second Examining Court handed down an indictment against nineteen police officers for the crimes of torture, primary and secondary participation in the commission of torture, unlawful duress, or failure to report torture.

14. On August 26, 1995, the Second Examining Court dismissed the case against the eleven defendants charged with failing to report torture, finding that statutory limitations now applied to the incident. On September 11, 1995 the petitioners filed a motion for annulment of such decision, for failure to establish sufficient grounds. On September 21, 1995 the judge responsible for the Second Examining Court dismissed the motion. On November 23, the petitioners appealed to the Fourth Criminal Chamber, which rejected their motion on November 23, 1995. The petitioners filed an extraordinary appeal before the Mendoza Supreme Court of Justice, which was denied on February 5, 1997.

15. Citing “lack of evidence,” on September...