Report No. 28 (2021) IACHR. Petition No. 309-08 (Chile)

Year2021
Case TypeAdmissibility
Respondent StateChile
CourtInter-American Comission of Human Rights
Report No. 28/21
















REPORT No. 28/21

PETITION 309-08

REPORT ON ADMISSIBILITY


ROBERTO ENRIQUE GONZÁLEZ MORALES

CHILE

OEA/Ser.L/V/II

Doc. 32

7 M. 2021

Original: Spanish



























Approved electronically by the Commission on M. 7, 2021.







Cite as: IACHR, Report No. 28/21, Petition 309-08. A.. R.E.G.M.. Chile. M. 7, 2021.





www.cidh.org


I. INFORMATION ABOUT THE PETITION

Petitioner:

Roberto Enrique González Morales

:

Roberto Enrique González Morales

Respondent S.:

Chile1

Rights invoked:

Articles 8 (fair trial), 24 (equal protection), and 26 (social, economic, and cultural rights) of the American Convention on Human Rights2 in relation to its Article 1.1 (obligation to respect rights)

II. PROCEDURE BEFORE THE IACHR3

Filing of the petition:

M. 13, 2008

N. of the petition to the S.:

February 18, 2014

S.’s first response:

August 23, 20174

III. COMPETENCE

Competence Ratione personae:

Y.

Competence Ratione loci:

Y.

Competence Ratione temporis:

Y.

Competence Ratione materiae:

Y., American Convention (deposit of instrument of ratification on August 21, 1990)

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

Articles 8 (fair trial) and 25 (judicial protection) of the American Convention, in relation to its Article 1 (obligation to respect rights)

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

Y., on November 20, 2007

Timeliness of the petition:

Y., under the terms of Section VI


V. ALLEGED FACTS


  1. The petitioner and alleged victim (hereinafter also “Mr. González”) states that on September 22, 2005, he graduated as a lawyer from the Catholic University of Cuenca, in the city of Cuenca, Ecuador. He claims that said university recognized the studies he had pursued at the Santo Tomás University in Chile; that he received credits for the courses he had approved there; and that he was asked to take other courses dealing with Ecuadorian law, as well as the submission and oral defense of a dissertation. He explains that he had previously undertaken studies to obtain Lawyer degree in Chile, for which he still had to meet certain requirements such as a final graduation examination, the submission of a written memorial and completing 6 months of pro bono practice for the S..

  2. The petitioner states that on January 26, 2007, he filed a request for authorization for foreign-trained lawyers to practice law before the Supreme C. of Justice by virtue of the “Treaty on Mutual Recognition of Professional Qualifications and Degrees”, signed by Chile and Ecuador on December 17, 1917, and ratified under Decree No. 961 of J. 16, 19375. He claims the Supreme C. denied the request on August 10, 2007, based on Decree No. 490 of August 17, 1988, on the agreement between the governments of Chile and Ecuador interpreting the Agreement of Mutual Recognition of Professional Qualifications and Degrees.

  3. He claims that by virtue of Decree No. 490, the C. considered with broad discretion that M.G.’s studies in Ecuador were not “effectively” completed “as required under the treaty governing this matter,” and concluded that the reason for obtaining his degree in law abroad “could not have been other than ridding himself of the obligations, requirements, and burdens imposed by C. universities.” M.G. claims that the basis of the C. leis on the absence of any impediment that would prevent the applicant from obtaining the degree of Licenciado at the C. university where he studied and, in particular, in the periods of stay in Ecuador, which had not exceeded a total of 4 months. M.G. refers that the C., in a discretionary attitude protected by a decree interpreting a bilateral treaty, and without notifying him to render allegations on the matter, inferred his particular interests and motivations for obtaining a degree in Ecuador, pointing out that they could not have been other than to avoid university burdens and responsibilities, despite the fact that he fulfilled all the requirements established in the Treaty..

  4. He submits that he filed an appeal for review on October 17, 2007, which the Supreme C. concluded on 20 November 2007. On that occasion, the C. denied the appeal, as "the arguments and case law raised were not enough to undermine the grounds of the decision of August 10, 2007”. In this regard, he claims that such decision may not be challenged outside of the administrative venue and that no other remedies are available, therefore infringing his right to practice a profession.

  5. The S., for its part, argues that the petition is inadmissible as no facts are alleged, or could be deduced, that may involve a violation of rights enshrined in the American Convention; and that it is rather about the unfulfillment of certain requirements established to authenticate the university degree in question. According to the S., the petitioner does not meet the requirements established in the agreement on the interpretation of the Treaty on Mutual Recognition of Professional Examinations and Degrees from 1988 as he did not study the full program in law in Ecuador, as he only spent four months in the said country and undertook some courses. The S. highlights that, considering the studies that the petitioner did in a C. university, there nothing that prevents him from completing the pending requirements and obtaining his degree in law under the norms established in the Organic Code of C.s of Chile.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

  1. As to the exhaustion of domestic remedies, the petitioner claims these were exhausted as the highest court in the Republic of Chile decided on the matter and no further remedy is allowed. In turn, the S. contends that the petitioner should not have resorted to an international body for the protection of human rights since this type of bodies “are competent only when a domestic legal system does not provide remedies to solve a dispute or when the existing remedies prove inadequate or ineffective.” The Commission recalls that when a S. claims the lack of exhaustion of domestic remedies, it has the duty to point out which are the remedies that have not been exhausted and to establish their adequacy. On this light, the Commission notes that, for the purposes of deciding about the admissibility, the alleged victim has exhausted the remedies available in the domestic jurisdiction and that, thus, the instant petition fulfills the requirement established in Article 46.1.a of the American Convention.

  2. As to the requirement of timeliness, the Commission observes that the IACHR received the petition on M. 13, 2008, and that the final decision issued by the Supreme C. of Chile on November 20, 2007. Therefore, the Commission believes that the filing of petition was timely, and that this requirement must be declared met.

VII. ANALYSIS OF COLORABLE CLAIM

  1. The Commission notes that the present petition includes allegations regarding the alleged lack of judicial guarantees, the broad discretion of the Supreme C. protected by Decree No. 490 in the process of applying for a law degree, the impossibility of going to an authority in a judicial venue, and the lack of reasoning by the Supreme C. in the decision on the appeal for...

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